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...OfC 


AN  ESSAY 


ON   THE 


PRINCIPLES 


OF 


CIRCUMSTANTIAL  EVIDENCE, 


SUnatrotfi  hi|  Mnrnttun  €ut^. 


BY 

WILLIAM  WILLS,  ESQ. 


Nulla  deniqne  est  causa,  in  qua  id,  quod  in  judicium  venit,  ex  reorum  personis, 
non  generum  ipsorum  universa  disputatione  quseratur. — Cic.  de  Oratore. 


FROM  THE  THIRD  LONDON  EDITION, 


a^-l-^^2^/^ 


PHILADELPHIA: 
T.  U  J.  W.  JOHNSON.  LAW  BOOKSELLERvS  &  PUBLISHERS 

1852. 


STEAM    POWER    PRESS,    WEST    BROOKFIELD 
0.    3.    COOKE    AND    CO.,    PRINTERS. 


PREFACE 

TO     THE    FIRST    EDITION 


The  most  important  doctrines  of  Circumstantial  Evidence  have 
been  so  ably  treated  in  the  learned  works  of  Mr.  Bentham  and  Mr. 
Starkie,  that  an  apology  may  be  thought  necessary  for  this  publica- 
tion. It  will  however  be  perceived,  that  the  design  of  the  following 
Essay  is  different  in  some  important  particulars  from  that  of  either 
of  the  above-mentioned  authors  ^  and  that  an  attempt  has  been  made 
to  illustrate  the  subject  by  the  application  of  man}^  instructive  cases, 
some  of  which  have  been  compiled  from  original  documents,  and  oth- 
ers from  publications  not  easily  accessible. 

It  has  not  always  been  practicable  to  support  the  statement  of 
cases  by  reference  to  books  of  recognised  authority,  or  of  an  equal 
degree  of  credit  ;  but  discrimination  has  uniformly  been  exercised  in 
the  adoption  of  such  statements  ;  and  they  have  generally  been  ver- 
ified by  comparison  with  contemporaneous  and  independent  accounts. 
A  like  discretion  has  been  used  in  the  rejection  of  some  generally 
received  cases  of  circumstantial  evidence,  the  authenticity  of  which 
does  not  appear  to  be  sufficiently  established. 

It  is  to  be  regretted  that,  with  the  exception  of  the  State  Trials, 
there  is  no  authoritative  collection  of  English  cases  of  controverted 
fact,  for  which  nevertheless  there  are  extant  abundant  materials. 
Isolated  and  anomalous  as  such  cases  may  appear  to  be,  they,  like 
every  other  part  of  the  great  system  of  jurisprudence,  are  reduci- 
ble to  consistent  and  immutable  principles  of  reason  and  natural  jus- 
tice. There  has  existed  hitherto  little  inducement  to  any  such  com- 
pilation, since,  (however  pertinent  and  instructive  such  cases  might 
be,)  by  an  unreasonable  rule  of  legal  procedure  they  were  shut  out 
from  practical  applicatioju.     It^^i;>bable  that,  as  the  consequence 


iV  PRBFACE. 

of  recent  legislative  changes,  cases  of  circumstantial  evidence  will 
hereafter  be  treated  with  an  amplitude  of  argument  and  illustration, 
both  as  to  fact  and  principle,  which  will  give  them  an  increased  value, 
and  offer  inducements  to  the  satisfactory  record  of  such  cases  for 
the  purposes  both  of  practical  use  and  liberal  curiosity. 

In  the  course  of  my  experience  and  reading,  my  attention  has  fre- 
quently been  drawn  to  the  leading  principles  of  circumstantial  evi- 
dence. The  matter  which  presented  itself  upon  this  favorite  subject 
of  study,  and  the  thoughts  which  it  suggested,  it  was  my  practice  to 
preserve  ;  and  thus,  without  any  view  to  publication,  materials  grad- 
ually and  insensibly  accumulated,  which  at  length  I  have  endeav- 
oured to  methodize  and  arrange  in  the  present  volume.  Notwithstand- 
ing the  originality  of  some  of  those  materials,  and  the  novelty  of 
their  arrangement  and  combination,  it  is  probable  that  few  of  the 
generalizations  and  reflections  advanced  in  this  Essay  can  be  consid- 
ered as  strictly  original.  The  labor  of  composing  these  pages  has 
nevertheless  been  an  agreeable  and  useful  employment,  in  the  brief 
intervals  of  leisure  from  other  pursuits  ;  and  though  I  am  not  insen- 
sible to  their  deficiences,  I  am  not  without  the  hope  that  they  may 
be  in  some  degree  serviceable  to  others.  At  any  rate  this  essay  will 
be  considerately  received  by  those  who  rightly  estimate  the  impor- 
tance of  the  subject,  and  the  difficulties  of  such  an  attempt. 

W.  W. 

Edgbaston,  near  Birmingham, 
February,  1838. 


PREFACE 

TO     THE     THIRD     EDITION 


The  favourable  reception  which  this  Essay  has  met  with  has  in- 
duced me  again  to  commit  it  to  the  press. 

I  have  incorporated  with  the  text  of  the  present  edition  the  more 
recent  cases  of  circumstantial  evidence,  in  some  of  which  the  lead- 
ing doctrines  applicable  to  that  department  of  moral  and  legal  science 
have  been  declared  with  a  clearness,  precision  and  completeness 
which  are  not  to  be  found  in  connection  with  the  earlier  cases. 
Those  parts  of  the  Work  which  relate  to  the  subject  of  presumptions 
have  been  considerably  enlarged,  and  other  portions  of  it  have  been 
wholly  re-written. 

I  avail  myself  of  this  opportunity  of  recording  my  obligations  to 
that  profound  jurist  and  upright  magistrate,  the  late  Chancellor 
Kent,  to  whose  estimate  of  this  Essay  I  have  been  indebted  for  its 
re-pubhcation  in  the  United  States  of  America. 

Nor  can  I  quit  my  subject  without  expressing  my  admiration  of 
the  simplicity  and  harmony  of  our  English  system  and  rules  of  evi- 
dence, and  of  their  incomparable  superiority  to  those  of  all  other 
nations  which  have  adopted  or  modified  the  doctrines  and  practice 
of  the  Civil  Law,  so  unworthy  of  the  general  excellence  of  that  im- 
perishable monument  of  human  wisdom ;  a  superiority  for  which  we 
are  mainly  indebted  to  the  uncompromising  resistance  made  by  our 
forefathers  to  every  attempt  to  substitute  the  intangible  subtleties 
and  impracticable  formulae  of  the  Roman  jurisprudence  for  the  plain 
and  intelligible  principles  of  our  own  Common  Law. 

W.  W. 
EgbaBtoa,  February  1850. 

2 


TABLE  OF  CONTENTS. 


[The  figures  refer  to  the  original  pages,  indented  in  the  margin.] 
CHAPTER  I. 

EVIDENCE    IN    GENERAL. 

Page 

Sect.   1.— Nature    of    Evidence 1 

2. —  Various  kinds  of  Evidence 2 

3. — Nature  of  the  Assurance  produced  by  different  kinds 

of  Evidence .4 

CHAPTER  n. 

Cir.CUMSTAXTlAL    EVIDENCE. 

Sect.  1. — Essential  Characteristics  of  Circumstantial  Evidence  15 

2. — Presumptions  17 

3. — Relative  value  of  Direct  and  Circumstantial  Eviden- 
tiary   Facts  33 

CHAPTER  HI. 

INCULrATORY    MORAL    INDICATIONS. 

Sect.  1.— Motives 37 

2. — Declarations  of  Intention          .         .          .          .         .  45 

3. — Preparations  for  the  Commission  of  Crime       .         .  46 

4. — Recent  Possession  of  the  Fruits  of  Crime          .         .  47 
5. — Unexplained  Appearances  of  Suspicion,  and  attempts 

to  account  for  them  by  false  representations  57 
6. — Indirect  Confessional  Evidence         .         .         .         .60 
7. — The  Suppression,  Destruction,  Fabrication  and  Sim- 
ulation of  Evidence 72 

8. — Statutory  Presumptions     .                  ....  84 

CHAPTER  IV. 

EXTRINSIC    AND    MECHANICAL    INCULPATORY    INDICATIONS. 

Sect.  1. — Identification  of  Person  ....     90 


VIU  CONTENTS. 

.    Page 

Sect.  2. — Identification  of  Articles  of  Property  .  104 

3. — Proof  of  Hand- writing  .  .  .         .         .108 

4. — Verification  of  Time  and  Dates  .         .         .         .114 

CHAPTER  V. 

EXCULPATORY    PRESUMPTIONS    AND     CIRCUMSTANTIAL    EVIDENCE       120 

CHAPTER  VI. 

RULES   OF  INDUCTION  APPLICABLE  TO  CIRCUMSTANTIAL  EVIDENCE     135 

CHAPTER  VII. 

PROOF  OF  THE  CORPUS  DELICTI. 

Sect.  1. — General  Doctrine  as  to  the  Proof  of  the  Corpus  Delicti.  156 
2. — Proof  of  the  Corpus  Delicti  by  Circumstantial  Evi- 
dence        .........   158 

3. — Application  of  the  doctrine  to  cases  of  Homicide       .  162 
4. — Application  of  the  general  principle  to  proof  of  the 

Corpus  Delicti  in  cases  of  poisoning         .         .         .   178 
5. — Application  of  the  general  principle  to  the  proof  of 

the  Corpus  Delicti  in  cases  of  Infanticide         .         .  203 

CHAPTER  VIII. 

FORCE  AND  EFFECT  OF  CIRCUMSTANTIAL  EVIDENCE. 

.Sect.  1. — General  grounds  of  the  Force  of  Circumstantial  Evi- 
dence          209 

2. — Considerations  which  augment  the  Force  of  Circum- 
stantial Evidence  in  particular  cases  .  .         .  213 

3. — Cases  Illustrative    of  the   Force  of   Circumstantial 

Evidence  ......  .         .  225 

4. — Conclusion      ........  245 


TABLE 


OF    CASES    CITED   IN   THIS   WORK, 


A. 

Allport  V.  Meek,  109. 
Ai'morie  v.  Delamirie,  72. 
Ashford  v.  Thornton,  145. 

B. 

Banbury  Peerage,  32. 
Bromage  v.  Rice,  109. 


Chambers  v.  The  Queen's  Proc- 
tor, 224. 
Clunnes  v.  Pezzy,  73. 
Constable  v.  Steibel,  IIC. 
Craig  V.  Earl  of  Anglesea,  73. 
Crisp  V.  Walpole,  114. 

D. 

Doe  d.  Day  v.  Day,  94. 

Doed.  Muddv.  Suckermore,  109, 

110,  111. 
Doe  d.  Perry  v.  Newton,  109. 
Douglas  case,  94. 

E. 

Eagleton  V.  Kingston,  112. 

F. 

Fitzwalter  Peerage,  110. 

G. 

Goodtitle  v.  Revett,  110. 
Griffith  V.  Williams,  109. 
Griffitsv.  Ivery,  109,  HI. 


CIVIL  CASES. 

Gurney  v.  Langlands,  110. 

H. 

Hughes  V.  Rogers,  111. 

J. 
Jayne  v.  Price,  128. 

L. 
Lawton  v.  Sweeney,  73. 

M. 


Mortimer  v.  Craddock,  72. 
Mossam  v.  Ivy,  115. 

R. 

Robson -y.  Rocke,  112,  114. 
Rutledge  v.  CaiTuthers,  94. 

S. 

Smith  V.  Earl  Ferrers,  118,  219. 
Solita  V.  Yarrow,  109. 

T. 
Tracy  Peerage,  73,  110. 

W. 

Waddington  v.  Cousins,  109. 

Y. 

Young  V.  Brown,  110. 
Young  V.  Homer,  111. 


TABLE    OF   CASES. 


CRIMINAL    CASES. 


Adams,  49. 

Alcorn,  180. 

Alexander,  113. 

Alraan,  84. 

Angus,  204, 

Anonymous,  47,  49,  54,  67,  69, 
86,  92,  96,  97,  103,  lOG,  110, 
114,  117,  165,  172,  175. 

Aram,  69. 

Arden,  95. 

Arundel  and  others,  128 

Avery,  215. 


B. 


BaU,  44. 

Banks,  88. 

Barnard,  130. 

Bate,  96,  203. 

Beards,  101. 

Belany,  175. 

Bell,  43. 

Bingham,  125. 

Blandy,  28,  43,  157. 

Boorns,  the  two,  63,  163. 

Booth,  172. 

Bowditch,  218. 

Bowman,  52. 

Brain,  204. 

Brennan,  133. 

Brindley,  100. 

Brook,  93,  95. 

Brown  and  Wood,  31,  91. 

Biiish,  127. 

Burdett,  17,  47,  53,  145,  146.  156. 

158. 
Burdock,  54,  76,  165,  197. 
Byrne,  94. 


Carrol,  43. 
Carsewell,  112. 
Carter,  107. 
Castaing,  180. 
Cator,  110. 
Clewes,  65,  149,  165. 
Clinch  and  Mackler,  91. 


Cocldn,  48. 

Cole,  131. 

Coleman,  68,  7],  82,  91. 

Collier,  J  28. 

Connor,  220. 

Cook,  /7,  1G5. 

Corder,  J  70. 

Cornwallis,  Lord,  157. 

Courtnage  and  Mossiughani,  130. 

Courvoisier,  53,  241. 

Crossley,  157. 

Crutchley,  20 J. 

Cruttenden,  49. 

Cuthell,  84. 


D. 


Davidson,  205. 

Davison,  131. 

Dawtrev,  58. 

De  la  Motte,  73,  109. 

Despard,  147. 

Dewhirst,  49. 

D]'''"'les  53. 

Donellan,  28,  73,  76,  78,  79,  187, 

192. 
DonnaU,  71,  73,  76,  124,  187,  188. 
Downie  and  Mihie,  51. 
Downing,  125,  137,  139,  158,  220. 
Duffin,  43. 
Du  Moulin,  130. 
Dunnet,  88. 


E. 


Edge,  148,  164. 
Elder,  182. 
Eldridge,  61. 
ElHs,  55. 
Enoch,  204. 


Farrington,  42. 
Faiilkner,»61. 
Felton,  62. 
Fenning,  127. 
Ferguson,  203. 
Fisher,  61. 
Fitter,  79,  129. 


TABLE    OF    CASES. 


XI 


Fraser,  133. 
Freeman,  130,  175. 
Frost,  147. 
FuUer,  46,  -53. 

G. 

Gardelle,  76. 
Gill,  55,  165. 
Good,  77,  IGd. 
Graham,  70,  189. 
Green  and  others,  71,  163. 
Greenacre,  78,  171,  220. 
Greenwood,  92. 
Grounall,  205. 

H. 

Haggerty  and  olliers,  69. 
Haigh,  175. 
Haines,  93. 
Harvey,  42. 
Hawkins,  114,  125. 
Hayes  and  others,  165. 
Heath  and  Crowder,  97. 
Heaton,  104. 
Hewlett,  49. 
Higgins,  66,  183. 
Hindmarsh,  164. 
Hinley,  50. 
Hobson,  157. 
Hodges,  33,  95,  151. 
Hodgson,  44,  171. 
Hopkins,  164. 
Home,  149. 

Howe,  alias  Wood,  234. 
Hubert,  63. 
HuU,  44. 
Humphreys,  115,  168. 


Isaacs,  58. 


I. 


J. 


Jeffreys  and  Swan,  81,  95. 
Jennings,  130. 
Jolmson,  110,  112. 
Jones,  65. 
Jones  and  Welch,  68. 


Locker,  60,  99,  141,  220. 

M. 
M'Dougal,  165. 

M'Kechnie  and  Tolmie,  56,  108. 
M'Kinley,  121. 
Macowan,  165. 
Mansfield,  50. 

Manning  and  Wife,  201,  212,  221. 
Martin,  44. 
Mayenc,  104,  130. 
Meilor,  147. 
Melville,  Viscount,  72. 
IMiles,  163. 
Millward,  44. 
Mountford,  97. 


Norkott,  80. 


Okeman,  34. 
Oliver,  95. 


K. 


Kirkwood,  44. 


N. 


O. 


P. 


Palayo,  99. 

Partridge,  49. 

Patch,  30,  79,  118,  150,  230. 

Perreys,  the,  162. 

Poulton,  204. 

R. 

Reeves,  204. 
Richardson,  59,  103,  225. 
Rickman,  53. 
Riembaur,  63. 
Robins,  105. 
Robmson,  83,  92. 
Roper,  149. 
Rush,  217. 


Sawyer,  113. 
Scofield,  127. 
SeUis,  254. 
Shaw,  104,  132. 
Simpson,  203. 
Smith,  30,  48. 


xu 


TABLE   OF   CASES. 


Smith,  Varnham  and  Timms,  103, 

237. 
Squires  and  Wells,  218. 
Standsfield,  34. 
Step  toe,  66. 
Stewart,  206. 
Sunderland,  44. 
Swan  and  Jeffreys,  81,  95. 


Tawell,  44,  60,  154,  161,  162,  168, 

180,  188,  198. 
Tliomas,  75. 
Thornton,  60,  104,  119,  128,  133, 

141,  220. 
Thurtell,  164. 
Tippett,  61. 
Trilloe,  204. 


Voke,  44. 


V. 


W. 


Waigh,  131. 
WaU,  149. 
Warrickshall,  60. 
Warwickshire  case,  82,  163. 
Watson,  147. 
Webster,  106. 
Wescombe,  79. 
Whalley,  123. 
White,  61,  107. 
WhittaU,  130. 
Wilson,  67. 
Wood,  132. 

Wood,  alias  Howe,  234. 
Wood  and  Brown,  31,  91. 
Woodburne  and  Coke,  42. 
Wright,  204. 


THE  PRIXCIPLES 


CIRCUMSTANTIAL  EVIDENCE. 


<  »»»  » 


CHAPTER    I. 

EVIDENCE    IN    GENERAL. 


SECTION     1. 

THE   NATURE   OF   EVIDENCE. 

It  Avill  greatly  conduce  to  the  formation  of  clear  and  correct 
notions  on  the  subject  of  Circumstantial  Evidence,  to  take  a  brief 
introductory  view,  of  the  nature  of  evidence  in  general,  of  some  of 
its  various  kinds,  and  of  the  nature  of  the  assurance  which  each  of 
them  is  calculated  to  produce. 

The  great  object  of  all  intellectual  research  is  the  discovery  of 
TRUTH,  which  may  be  defined  to  be  the  conformity  of  words,  ideas, 
and  relations  with  the  nature  and  reality  of  events  and  things. 

The  JUDGMENT  is  that  faculty  of  the  mind  which  is  principally 
concerned  in  the  investigation  and  acquisition  of  truth  ;  and  its 
exercise  is  the  intellectual  act  by  which  one  thing  is  perceived  and 
affirmed  of  another,  or  the  reverse. 

Every  conclusion  of  the  judgment,  whatever  may  be  its  subject, 
is  the  result  of  evidence, — a  word  which  (derived  from  words  in 
the  dead  languages  signifying  to  see,  to  know,)  by  a  nat- 
ural transition  is  applied  to  denote  the  means  *by  which  any     [  *2  ] 
alleged  matter  of  fact,  the  truth  of  which  is  submitted  to 
investigation,  is  established  or  disproved. 

The  term  proof  is  often  confounded  with  that  of  evidence,  and 
applied  to  denote  the  medium  of  proof,  whereas  in  strictness  it 
marks  merely  the  effect  of  evidence.     When  the  result  of  evidence 

3 


2  THE   VARIOUS   KINDS    OF   EVIDENCE. 

is  uncloubting  assent  to  the  certainty  of  the  event  or  proposition 
Tvliicli  is  the  subject-matter  of  inquiry,  such  event  or  proposition  is 
said  to  be  2)roved  ;  and^  according  to  the  nature  of  the  evidence  on 
which  such  conclusion  is  grounded,  it  is  either  hioion  or  believed  to 
be  true*.  Our  judgments  then,  are  the  consequence  of  proof; 
and  proof  is  that  quantity  of  appropriate  evidence  Avhich  produces 
assurance  and  certainty  ;  evidence  therefore  diifers  from  proof,  as 
cause  from  effect. 

It  is  unnecessary,  in  relation  uO  the  subject  of  this  section,  to 
mention  the  inferior  degrees  of  assurance,  which  will  be  more  ap- 
propriately noticed  in  another  place. 


SECT  ION   2. 

THE  VARIOUS  KINDS  OF  EVIDENCE. 


Truth  is  either  abstract  and  necessary,  or  probable  and  contin- 
gent ;  and  each  of  these  kinds  of  truth  is  discoverable  by  appro- 
priate, but  necessarily  different  kinds  of  evidence.  This  classifica- 
tion, however,  is  not  founded  in  any  essential  difference  in  the 
nature  of  truths  themselves,  and  has  reference  merely  to  our  imper- 
fect capacity  and  ability  of  perceiving  them  ;  since  to  an  Infinite 
Intelligence  nothing  which  is  the  object  of  knowledge  can  be  prob- 
able, and  everything  must  be  perceived  absolutely  and  really  as 
it  isf. 

In  many  instances  the  correspondence  of  our  ideas  with 
[  *3  ]  realities  is  perceived  instantaneously,  and  without  any  *con- 
scious  intermediate  process  of  reasoning,  in  which  cases  the 
judgment  is  said  to  be  intuitive,  from  a  word  signifying  to  look 
at ;  and  the  evidence  on  which  it  is  founded  is  also  denominated 
intuitive  ;  though  it  would  perhaps  be  more  correct  to  use  that  word 
as  descriptive  of  the  nature  of  the  mental  operation,  rather  than  of 
the  kind  of  evidence  on  which  it  rests. 

Intuition  is  the  foundation  of  demonstration,  which  consists  of 
a  series  of  steps  severally  resolvable  into  some  intuitive  truth.  De- 
monstration concerns  only  necessary  and  immutable  truth  ;  and  its 
first  principles  are  definitions,  which  exclude  all  ambiguities  of 
language,  and  lead  to  infallibly  certain  conclusion.  $ 

*  Wliateley's  Logic,  b.  iv.  ch.  iii.  s.  1. 
t  Butler's  Analogy,  Introduction. 
t  Stewart's  Elenoents  of  the  Philosophy  of  the  Hnman  Mind,  vol.  ii.  ch.  ii.  s.  3 


THE   VARIOUS    KINDS    OF   EVIDENCE.  3 

But  ■wide  as  is  the  rang3  of  the  human  intellect,  the  subjects 
which  admit  of  the  certainty  of  intuition  and  demonati-ation  are 
comparatively  few.  Innumerable  truths,  the  knowledge  of  which 
is  indispensable  to  happiness,  if  not  to  existence,  depend  upon  evi- 
dence of  a  totally  different  kind,  and  admit  of  no  other  guide  than 
our  own  consciousness  or  the  testimony  of  our  fellow-men.  The 
subjects  of  evidence  of  these  latter  kinds  are  questions  of  facts  or 
of  actual  existence,  which,  as  they  are  not  of  a  necessary  nature, 
may  or  may  not  have  existed,  without  involving  any  contradiction, 
and  as  to  which  our  reasonings  and  deductions  may  be  erroneous. 
Such  evidence  is  called  moral  evidence  ;  probably  because  its 
principal  application  is  to  subjects  directly  or  remotely  connected 
with  moral  conduct  and  relations.* 

Of  the  various  kinds  of  moral  evidence,  that  of  testimony  is 
the  most  comprehensive  and  important  in  its  relation  to 
human  concerns  ;  so  extensive  is  its  application,  *that  to  [  *4  ] 
enter  on  the  subject  of  testimony  at  large,  would  be  to  treat 
of  the  conduct  of  the  understanding  in  relation  to  the  greater  por- 
tion of  human  affairs.  The  design  of  this  essay  is  limited  to  the 
consideration  of  some  of  the  principal  rules  and  doctrines  peculiar 
to  circumstantial  evidence  as  applicable  to  criminal  jurisprudence, 
— one  of  the  leading  heads  under  which  philosophical  and  juridical 
writers  consider  the  subject  of  testimonial  evidence.  Nor  is  it 
proposed  to  treat,  except  cursorily  and  incidentally,  of  docanicntary 
circumstantial  evidence  ;  a  subject  which,  however  inter  'scing  in 
itself,  is  applicable  principally  to  discussions  upon  the  genuineness  of 
historical  and  other  writings  ;  and  such  cases  of  this  description 
as  occasionally  happen  in  the  concerns  of  common  life,  are  referable 
to  general  principles,  which  equally  apply  to  circumstantial  evi- 
dence of  every  kind. 

Considering  how  many  of  our  most  momentous  determinations  are 
grounded  upon  circumstantial  evidence,  and  how  important  it  is,  that 
they  should  be  correctly  formed,  the  subject  is  one  of  deep  interest, 
and  moment.  It  would  be  most  erroneous  to  conclude  that,  because 
it  is  illustrated  principally  by  forensic  occurrences,  it  especially  con- 
cerns the  business  or  the  members  of  a  particular  profession. 
Such  events  are  amongst  the  most  interesting  occurrences  of  social 
life  ;  the  subject  relates  to  an  intellectual  process,  called  into  exer- 
cise in  almost  every  branch  of  human  speculation  and  research. 

*  Gambier's  Introduction  to  the  Study  of  Moral  Evidence,  p.  1.  (ed.  3.)  Crombie'' 
Natural  Theology,  vol.  i.  pp.  448,  354. 


4  NATURE   OF  THE   ASSURANCE   PRODUCED 

SECTION      3. 

NATURE  OF  THE    ASSURANCE    PRODUCED    BY    DIFFERENT    KINDS     OF 

EVIDENCE. 

In  investigations  of  every  kind  it  is  essential  that  a  correct  esti- 
mate be  made,  of  the  kind  and  degree  of  assurance   of  which  the 

subject  admits. 
[  *5  ]  *Since  the  evidence  of  demonstration  relates  to  neces- 
sary truths,  (as  to  which  the  supposition  of  the  contrary  in- 
volves not  merely  what  is  not  and  cannot  be  true,  but  what  is 
also  absurd,)  and  since  moral  evidence  is  the  basis  of  contingent 
or  probable  truth  merely,  it  follows  that  the  convictions  which  these 
various  kinds  of  evidence  are  calculated  to  produce  must  be  of  very 
diiferent  natures.  In  the  former  case  absolute  certitude  is  the 
result ;  to  which  moral  certainty,  the  highest  degree  of  assurance 
of  which  truths  of  the  latter  class  admit,  is  necessarily  inferior. 

Unlike  the  assent,  which  is  the  inevitable  result  of  mathematical 
reasoning,  belief  in  the  truth  of  events  may  be  of  various  degrees, 
from  moral  certr.inty,  the  highest,  to  that  of  mere  probability,  the 
lowest ;  between  which  extremes  there  are  innumerable  degrees  and 
shades  of  conviction,  which  the  latency  of  mental  operations  and  the 
unavoidable  imperfections  of  language  render  it  impossible  to  define 
or  express.  In  subjects  of  moral  science,  the  want  of  appropriate 
words,  and  the  occasional  application  of  the  same  word  to  denote  dif- 
ferent things,  have  given  occasion  to  much  obscurity  and  confusion 
both  of  idea  and  expression  ;  of  which  a  remarkable  exemplification 
is  presented  in  the  words  probability  and  certainty. 

The  general  meaning  of  the  word  probability  is  likeness  or  simi- 
larity to  some  other  truth,  event,  or  thing*.  Sometimes  the  word 
probability  is  used  to  express  the  preponderance  of  the  evidence  or 
arguments,  in  favour  of  the  existence  of  a  particular  event  or  pro- 
position, or  adverse  to  it ;  and  sometimes  as  assertive  of  the  abstract 
and  intrinsic  credibility  of  a  fact  or  event. 

In  its  former  sense  the  probability  is  applied  as  *well 
[  *6  ]     to  certain  mathematical  subjects,  as  to  questions  dependent 
upon  moral    evidence,  and  it  expresses  the  ratio  of  the  fa- 
vourable cases  to  all  the  possible  cases  by  which  an  event  may  hap. 
pen  or  fail ;  and  it  is  represented  by  a  fraction,  the  numerator  of 

*  Butler's  Analogy,  Introduction.  Locke's  Essay  concerning  Human  Understand- 
ing, b.  iv.  ch.  XV.     Cic.  De  inventione,  c.  47. 


BY   DIFFERENT   KINDS    OF    EVIDENCE.  5 

•which  is  the  sum  of  the  favcurable  cases,  and  the  denominator  the 
•whole  number  of  possible  cases,  certainty  being  represented  by  unity. 
If  the  number  of  chances  for  the  happening  of  the  event  be  =0,  and 
the  event  be  consequently  impossible,  the  expression  for  that  chance 
"will  be  =0 ;  and  so,  if  the  number  of  chances  of  the  failure  of  the 
event  be  =0,  and  the  event  be  therefore  certain,  the  expression  for 
the  chance  of  failure,  •will  also  be  =0.  If  m-\-n  be  the  •whole  number 
of  cases,  m  the  favourable  and  n  the  unfavourable  ones,  the  pro- 
babilitj'-  of  the  event  is  m  :  m+n.  It  follows,  that  if  there  be  an  equal- 
ity of  chances  for  the  happening  or  the  failing  of  an  event,  the  fraction 
expressive  of  the  probability  is  =1,  the  mean  between  certainty  and 
impossibility* ;  and  probability  therefore  includes  the  whole  range 
between  those  extremes. 

The  terms  certainty  and  probability  are  however  essentially 
different  in  meaning  as  applied  to  moral  evidence,  from  •v\^hat  they 
import  in  a  mathematical  sense  ;  inasmuch  as  the  elements  of  moral 
probability,  notwithstanding  the  ingenious  arguments  which  have  been 
urged  to  the  contrary,  appear  to  be  incapable  of  numerical  expres- 
sion, and  because  it  is  not  possible  to  assign  all  the  chances  for  or 
against  the  occurrence  of  any  particular  event. 

The  expression  moral  probability,  though  liable  to  objection  on 
account  of  its  deficiency  in  precision,  is  for  want  of  one  more  defi- 
nite and  appropriate,  of  frequent  and  necessary  use  ;  nor  will  its  ap- 
plication lead  to  mistake,  if  it  be  remembered,  that  it  ex- 
presses only  the  preponderance  *of  probability,  resulting  [  *7  ] 
from  the  comparison  and  estimate  of  moral  evidence,  and 
that  if  it  were  capable  of  being  expressed  with  exactness,  it  would 
lose  its  essential  characteristic  and  possess  the  certainty  of  demon- 
stration. 

The  preceding  strictures  equally  apply  to  the  expression  moral 
CERTAINTY,  which  must  be  understood,  ^not  as  importing  deficiency 
in  the  proof,  but  only  as  descriptive  of  the  kind  of  certainty  which 
is  attainable  by  means  of  moral  evidence  ;  and  it  is  that  degree  of 
assurance  which  induces  a  man  of  sound  mind  to  act  without  doubt 
upon  the  conclusions  to  which  it  leads. f 

It  has  been  justly  and  powerfully  remarked  by  a  noble  and  learn- 
ed writer,  that  "  the  degree  of  excellence  and  of  strength  to  which 
testimony  may  rise  seems  almost  indefinite.     There  is  hardly  any 

*  Kirwan's  Logic,  part  iii.  ch.  vii.  s.  1. 

t  Stewart's  Elements,  vol.  ii,  ch  ii.  a.  4.  Encyclopaedia  Brit.,  art.  Metaphys- 
ics, part  i. 


6  NATURE    OF   TflE   ASSURANCE   PRODUCED 

cogency  which  it  is  not  capable  by  possible  supposition  of  attaining. 
The  endless  raultipUcation  of  witnesses — the  unbounded  variety  of 
their  habits  of  thinking,  their  prejudices,  their  interests — afford  the 
means  of  conceiving  the  force  of  their  testimony  augmented  ad  in- 
finitum, because  these  circumstances  afford  the  means  of  diminish- 
ing indefinitely  the  chances  of  their  being  all  mistaken,  all  misled, 
or  all  combining  to  deceive  us.*"  But  if  evidence  leave  reasona- 
ble ground  for  doubt,  the  conclusion  cannot  be  morally  certain,  how- 
ever great  may  be  the  preponderance  of  probability  in  its  favour. 

Some  mathematical  writers  have  propounded  numerical  fractions 
for  expressing  moral  certainty  ;  which,  as  might  have  been  expect- 
ed, have  been  of  very  different  values.  But  the  nature  of  the  sub- 
ject precludes  the  possibility  of  reducing  to  the  form  of  arithmeti- 
cal notation  the  subtle,  shifting,  and  evanescent  elements  of  moral 
assurance,  or  of  bringing  to  quantitative  comparison,  things  so  inhe- 
rently different  as  certainty  and  probability. 
[  *8  ]  *Other  writers  have  given,  in  a  more  general  manner, 
mathematical  form  to  moral  reasonings  and  judgments ; 
but  it  is  questionable  if  they  have  produced  any  useful  result,  how- 
ever they  may  have  shown  the  ingenuity  of  their  authors. f  Though 
it  be  true  that  some  very  important  deductions  from  the  doctrine  of 
chances,  are  applicable  to  events  dependent  upon  the  duration  of 
human  life,  such  as  the  expectation  and  the  decrement  of  life,  the 
law  of  mortality,  the  value  of  annuities  and  other  contingencies, 
and  also  to  reasoning  in  the  abstract  upon  particular  cases  of  testi- 
monial evidence, ij:  yet  it  is  obvious,  that  all  such  conclusions  depend 
upon  circumstances,  which,  notwithstanding  that  to  the  superficial 
and  unreflecting  observer  they  appear  casual,  uncertain,  and  irre- 
ducible to  principle,  unlike  moral  facts  and  reasonings  in  general  are 
really  based  upon  and  deducible  from  numerical  elements. § 

A  learned  writer,  whose  opinions,  in  despite  of  his  numerous  ec- 
centricities of  matter  and  of  style,  have  exercised  great  influence 
in  awakening  the  spirit  of  judicial  reformation,  and  are  destined  to 
exercise  still  more  auspicious  influences,  asks,||  "  Does  justice  re- 
quire less  precision  than  chemistry  ?  "  The  truth  is,  that  the  pre- 
cision attainable  in  the  one  case  is  of  a  nature  of  which   the  other 


*  Lord  Brougham's  Discourse  on  Natural  Theologj,  p.  251. 
t  See  Kirwan's  Logic,  part  iii.  oh.  vii.  s.  21.     "Whately's  Logic,  b.  ir.  cli.  ii.  s.  1. 
t  Whately's  Logic,  b.  iv.  ch.  ii.  s.  1.  §  Lubbock  on  Probability. 

II  Bentham's   Traite  des  Preuves   Judiciaires,  b.  i.  ch.  xvii.     Mackintosh's  Dis 
course  on  the  Progress  of  Ethical  Philosophy,  p.  290. 


BY   DIFFERENT    KINDS   OF   EVIDENCE.  7 

uues  not  admit.  It  would  be  absurd  to  require  the  proof  of  an 
historic  event,  by  the  same  kind  of  evidence  and  reasoning  as  that 
-which  establishes  the  equality  of  triangles  upon  equal  bases  and  be- 
tween the  same  parallels,  or  that  the  latus  rectum  in  an  ellipse  is  a 
third  proportional  to  the  major  and  minor  axes. 
This  conscript  father  of  legal  reforms*  has  himself  sup- 
*plied  a  memorable  illustration  of  the  futility  of  his  o^Yn  in-  [  *9  ] 
quiry.  He  has  proposed  a  scale  for  measuring  the  degrees 
of  beUef,  with  a  positive  and  a  negative  side,  each  divided  into  ten 
degrees,  respectively  affirming  and  denying  the  same  fact,  zero  de- 
noting the  absence  of  behef  t  and  the  witness  is  to  be  asked  what 
degree  expresses  his  belief  most  correctly.  With  his  characteristic 
ardour,  the  venerable  author  gravely  argues  that  this  instrument 
could  be  employed  without  confusion,  difficulty,  or  inconvenience.f 
But  MAN  must  become  wiser  and  better  before  the  mass  of  his 
species  can  be  entrusted  with  the  use  of  such  a  moral  guage, 
from  which  the  unassuming  and  the  wise  would  shrink,  while  it 
would  be  eagerly  grasped  by  the  conceited,  the  interested,  and  the 
bold. 

But,  though  a  process  strictly  mathematical  cannot  be  applied  to 
estimate  the  effect  of  moral  evidence,  a  proceeding  somewhat  anal- 
ogous is  observed  in  the  examination  of  a  group  of  facts  adduced  as 
grounds  for  inferring  the  existence  of  some  other  fact.  Although 
an  exact  value  cannot  be  assigned  to  the  testimonial  evidence  for  or 
against  a  matter  of  disputed  fact,  the  separate  testimony  of  each  of 
the  witnesses  has  nevertheless  a  determinat*  relative  value,  depend- 
ing upon  considerations  which  it  would  be  foreign  to  the  present 
subject  to  enumerate.  On  one  side  of  the  equation  are  mentally 
collected  all  the  facts  and  circumstances  which  have  an  affirmative 
value  ;  and  on  the  other,  all  those  which  lead  to  an  opposite  infer- 
ence, or  tend  to  diminish  the  weight,  or  to  show  the  non-relevancy, 
of  all  of  the  circumstances  which  have  been  put  into  the  opposite 
scale.  The  value  of  each  separate  portion  of  the  evidence  is  sep- 
arately estimated,  and,  as  in  algebraic  addition,  the  opposite  quan- 
tities, positive  and  negative,  are  united,  and  the  balance  of  probabil- 
ities is  what  remains  as  the  ground  of  human  belief  and  judgment.:!: 

*  Hoffmans  Course  of  Legal  Study,  vol.  i.  p.  364. 

t  Bcntham's  Rationale  of  Judicial  Evidence,  b.  i.  eh.  vi.  s.  1.,  and  see  in  Kirwan's 
Logic,  part  iii.  ch.  vii.  s.  21,  a  proposed  scale  of  testimonial  probability, 

X  See  some  remarks  on  this  passage  in  a  learned  paper  "  On  tiie  Measure  of  the 
Force  of  Testimony  incases  of  Legal  Evidence,"  by  John  Tozer.  Esq.,M.  A.,  Camb. 
Phil.  Trans,  vol.  viii. 


S  NATURE  OF  THE  ASSURANCE  PRODUCED 

But,  as  has  been  already  Intiraatecl,  there  is  another  sense  in 
•which  the  word  probabiUty  is  often  used,  and  in  which  it  denotes 
CREDIBILITY  or  INTERNAL  PROBABILITY,  and  expresscs  our  judg- 
ment of  the  accordance  or  similarity  of  events  with  which  we  be- 
come acquainted  through  the  medium  of  testimony,  with  facts  pre- 
viously known  by  experience.* 

The  results  of  experience  are,  expressly  or  impliedly,  assumed 
as  the  standard  of  credibility  in  all  questions  dependent  upon  moral 
evidence.  By  means  of  the  senses  and  of  our  own  consciousness 
we  become  acquainted  with  external  nature,  and  with^the  character- 
istics and  properties  of  physical  things  and  moral  beings,  which  are 
then  made  the  subjects  of  memory,  reflection,  and  other  intellectual 
operations ;  and  ultimately,  the  inferences  and  observations  to  which 
they  lead,  are  reduced  to  general  principles,  and  become  the  basis 
and  standard  of  comparison  in  similar  circumstances.  The  ground- 
work of  our  reasoning,  is  our  confidence  in  the  permanence  of  the 
order  of  nature,  and  in  the  existence  of  moral  causes,  which  operate 
with  unvarying  uniformity,  not  inferior  to,  and  perhaps  surpassing 
even,  the  stability  of  physical  laws ;  though,  relatively  to  our  feeble 
and  limited  powers  of  observation  and  comprehension,  and  on  account 
of  the  latency,  subtlety,  and  fugitiveness  of  mental  operations,  and 
of  the  infinite  diversities  of  individual  men,  there  is  apparently  more 
of  uncertainty  and  confusion  in  moral  than  in  material  phaenomena.f 
*Experience  comprehends,  not  merely  the  facts  and  deductions 
[*11]  personal  observation,  but  the  observations  of  mankind  at  large 
of  every  age  and  country.  It  would  be  absurd  to  disbelieve  and 
reject  as  incredible  the  relations  of  events,  because  such  events  have 
not  occurred  within  the  range  of  individual  experience.  We  may  re- 
member the  unreasonable  increduhty  of  the  king  of  Sram,  who, 
when  the  Dutch  ambassador  told  him  that  in  his  country  the  water 
in  cold  weather  became  so  hard  that  men  walked  upon  it,  and  that 
it  would  even  bear  an  elephant,  replied,  "  Hitherto  I  have  believed 
the  strange  things  you  have  told  me,  because  I  look  upon  you  as  a 
sober  fair  man,  but  now  I  am  sure  you  lie.J" 

By  experience  facts  or  events  of  the  same  character  are  referred 
to  causes  of  the  same  kind  ;  by  analogy  facts  and  events  similar  in 
some,  but  not  in  all  of  their  particulars  to  other  facts  and  occurren- 

*  Abercrombie  on  the  Intellectual  Powers,  part  ii.  s.  3, 

t  Hampden's  Lectures  introductory  to  the  study  of  Moral  Philosophy,  p.  150.     Ab- 
ercrombic's  Philosophy  of  the  Moral  feelings,  Prelim.  Obs.  s.  ii. 
t  Locke  on  the  Human  Understanding,  b.  iv.  eh.  xv.  s.  5. 


BY   DIFFERENT   KINDS   OF   EVIDENCE.  9 

ces,  are  concluded  to  have  been  produced  by  a  similar  cause  :  so 
that  analogy  vastly  exceeds  in  its  range,  the  limits  of  experience 
in  its  widest  latitude,  though  their  boundaries  may  sometimes  be  co- 
incident and  sometimes  undistinguishable.  It  has  been  profoundly 
remarked  that  "  in  whatever  manner  the  province  of  experience, 
strictly  so  called,  comes  to  be  thus  enlarged,  it  is  perfectly  manifest 
that,  without  some  provision  for  this  purpose,  the  principles  of  our 
constitution  would  not  have  been  duly  adjusted  to  the  scene  in  which 
we  have  to  act.  Were  we  not  formed  as  eagerly  to  seize  the  resem- 
bling features  of  different  things  and  different  events,  and  to  extend 
our  conclusions  from  the  individual  to  the  species,  life  would  elapse 
before  we  had  acquired  the  first  rudiments  of  that  knowledge  which 
is  essential  to  our  animal  existence.*"  Every  branch  of  know- 
ledge presents  instructive  examples  of  the  extent  to  which  *this  [  *12  ] 
mode  of  reasoning  may  be  securely  carried.  Newton,  from  hav- 
ing observed  that  the  refractive  forces  of  different  bodies  follow  the  ratio 
of  their  densities,  was  led  to  infer  the  combustibility  of  the  diamond, 
ages  before  the  mechanical  aids  of  science  were  capable  of  verify- 
ing his  prediction  ;  nor  is  the  sagacity  of  the  conjecture  less  strik- 
ing, because  this  correspondence  has  been  discovered  not  to  be  with- 
out exception.  The  scientific  observer,  from  the  inspection  of  shape- 
less fragments,  which  have  mouldered  under  the  suns  and  storms  of 
ages,  constructs  a  model  of  the  original  in  its  primitive  magnificence 
and  symmetry.  A  profound  knowledge  of  comparative  anatomy  en- 
abled the  immortal  Cuvier,  from  a  single  fossil  bone,  to  describe  the 
structure  and  habits,  of  many  of  the  animals  of  the  antediluvian 
world.  In  like  manner,  an  enlightened  knowledge  of  human  na- 
ture often  enables  us,  on  the  foundation  of  apparently  slight  circum- 
stances, to  follow  the  tortuous  windings  of  crime,  and  ultimately  to 
discover  its  guilty  author,  as  infallibly  as  the  hunter  is  conducted  by 
the  track  to  his  game. 

The  following  pertinent  and  instructive  observations  may  advan- 
tageously close  this  part  of  our  subject,  comprehending,  as  they  do, 
everything  that  can  be  usefully  adduced  in  illustration  of  the  neces- 
sity and  value  of  the  principle  of  analogy.  "  In  all  reasonings  con- 
cerning human  life,  we  are  obliged  to  depend  on  analogy,  if  it  were 
only  from  that  uncertainty,  and  almost  suspension  of  judgment,  with 
which  we  must  hold  our  conclusions.  We  can  seldom  obtain  that 
number  of  instances  which  is  requisite  here  to  establish  an  inference 

*  Stewart's  Elements,  vol,  ii.  ch.  ii.  8.  iv. 
4 


10  NATUKE  OF  THE  ASSURANCE  PRODUCED 

indisputably.  The  conduct  of  persons  or  of  parties  may  have  been 
attended  by  certain  antecedents  and  certain  results  in  the  examples 
before  us  ;  still  the  state  of  the  case  may  be  owing,  not  so  much  to 
that  conduct,  as  to  other  causes,  which  are  shut  out  of  our  view, 
[  *13  ]  when  our  attention  is  fixed  on  the  particular  *example3  adluced 
for  the  purpose  of  the  inference.  We  must  thus  be  strictly  on 
our  guard  against  transferring  to  other  cases,  anything  merely  contin- 
gent and  peculiar  to  the  instances  on  which  our  reasoning  is  founded. 
And  this  is  what  analogical  reasoning  requires  and  enables  us  to  do. 
If  rightly  pursued,  it  is  employed,  at  once,  both  in  generalizing  and 
discriminating ;  in  the  acute  perception  at  once  of  points  of  agree- 
ment and  points  of  difference.  The  acme  of  the  philosophical  power 
is  displayed  in  the  perfect  co-operation  of  these  two  opposite  proceed- 
ing?. We  must  study  to  combine  in  such  a  way  as  not  to  merge  real 
differences ;  and  so  to  distinguish  as  not  to  divert  the  eye  from  the 
real  correspondence."* 

It  may  be  objected,  that  the  minds  of  men  are  so  differently  con- 
stituted, and  so  much  influenced  by  differences  of  experience  and 
culture,  that  the  same  evidence  may  produce  in  different  individuals 
very  different  degrees  of  belief;  that  one  man  may  unhesitatingly 
believe  an  alleged  fact,  upon  evidence  which  will  not  in  any  degree 
sway  the  mind  of  another.  It  must  be  admitted  that  moral  certi- 
tude is  not  the  same  fixed  and  unvarying  standard,  alike  in  every 
individual ;  that  scepticism,  and  credulity,  are  modifications  of  the 
same  principle,  and  that  to  a  certain  extent  this  objection  is  grounded 
in  fact ;  but,  nevertheless,  the  psychological  considerations  which  it 
involves  have  but  little  alliance  with  the  present  subject ;  the  argu- 
ment, if  pushed  to  its  extreme,  would  go  to  introduce  universal  doubt 
and  distrust,  and  to  destroy  all  confidence  in  human  judgment 
founded  upon  moral  evidence.  It  is  as  impossible  to  reduce  men's 
minds  to  the  same  standard,  as  it  is  to  bring  their  bodies  to  the  same 
dimensions  ;  but  in  the  one  case,  as  well  as  in  the  other,  there  is  a 
general  agreement  and  similarity,  any  wide  departure  from  which  is 
instantly  perceived  to  be  eccentric  and  extravagant.  The  question 
is,  *not  what  may  be  the  possible  effect  of  evidence  upon 
[  *14  ]  minds  peculiarly  constructed,  but  what  ought  to  be  its  fair 
result  with  men  such  as  the  generality  of  civilized  men  are. 

It  is  of  no  moment,  in  relation  to  criminal  jurisprudence,  that  ex- 
pression cannot  be  given  to  the  inferior  degrees  of  belief.     The  doc- 

•  Hampden's  Lectures,  ut  supra,  p.  178. 


BY   DIFFERENT   KINDS    OF    EVIDENCE.  11 

trine  of  chances,  and  nice  calculation  of  probabilities,  cannot,  ex- 
cept in  a  few  cases,  and  then  only  in  a  very  general  and  abstract 
way,  be  applied  to  human  actions,  which  are  essentially  unlike,  and 
dependent  u])on  peculiarities  of  persons  and  circumstances,  which 
render  it  impossible  to  assign  to  them  a  precise  value,  or  to  compare 
them  with  a  common  numeral  standard  ;  nor  are  they  capable  in 
any  degree,  or  under  any  circumstances,  of  being  applied  to  actions 
which  infer  legal  responsibility.  In  the  common  aifairs  of  life,  men 
are  fiequently  obliged,  from  necessity  and  duty,  to  act  upon  the  low- 
est degree  of  belief;  and,  as  Mr.  Locke  justly  observes,  "  He  that 
will  not  stir,  till  he  infallibly  knows  the  business  he  goes  about  will 
succeed,  will  have  little  else  to  do,  but  to  sit  still  and  perish*." 
But  in  such  cases  our  judgments  commonly  concern  ourselves,  and 
our  own  motives,  duties  and  hiterests ;  while  in  the  administra- 
tion of  penal  justice,  the  magistrate  is  called  upon  to  apply  to  the 
conduct  of  others  a  rule  of  action,  applicable  to  a  given  state  of, 
acts,  where  external  and  sometimes  ambiguous  indicia  alone  consti- 
tute the  grounds  of  judgment.  In  the  application  of  every  such 
rule,  the  certainty  of  the  facts  is  pre-supposed,  and  is  its  only  foun- 
dation and  vindication;  and  upon  any  lower  degree  of  assurance, 
its  application  would  be  arbitrary  and  indefensible. 

*  Essay  on  the  Human  Understanding,  b.  iv.  ch.  xiv.  s.  1. 


12  CHARACTERISTICS   OF   CIRCUMSTANTIAL   EVIDENCE. 

[•15]  "C  H  A  P  T  E  R    1 1. 

CIRCUMSTANTIAL     EVIDENCE. 


SECTION    I. 

ESSENTIAL   CHARACTERISTICS   OF   CIRCUMSTANTIAL   EVIDENCE. 

The  epithets  direct  and  indirect  or  circumstantial,  as  ap- 
plied to  testimonial  evidence,  have  been  sanctioned  by  such  long 
and  general  use,  that  it  might  appear  presumptuous  to  question  their 
accuracy,  as  it  would  perhaps  he  impracticable  to  substitute  others 
more  appropriate.  But  assuredly  these  terms  have  frequently  been 
very  indiscriminately  applied,  and  the  misuse  of  them,  has  occasion- 
ally been  the  cause  of  lamentable  results ;  it  is  therefore  essential, 
accurately  to  discriminate  their  proper  application. 

On  a  superficial  view,  direct  and  indirect  or  circumstantial,  would 
appear  to  be  distinct  species  of  evidence  ;  whereas,  these  words  de- 
note only  the  diiferent  modes  in  which  those  classes  of  evidentiary 
facts  operate  to  produce  conviction.  Circumstantial  evidence,  is  of 
a  nature  identically  the  same  with  direct  evidence  ;  the  distinction 
is,  that  by  direct  evidence  is  mtended  evidence  which  applies  di- 
rectly to  the  fact  which  forms  the  subject  of  inquiry,  the  factum 
prohandum  ;  circumstantial  evidence  is  equally  direct  in  its  na- 
ture, but,  as  its  name  imports,  it  is  direct  evidence  of  a  minor  fact 
or  facts,  incidental  to' or  usually  connected  with  some  other  fact  as  its 

accident,  and  from  which  *such  other  fact  is  therefore  inferred. 
[*16]  A  witness  deposes  that  he  saw  A.  inflict  on  B.  a  wound,  of  which 

he  instantly  died  ;  this  is  a  case  of  direct  evidence.  B.  dies  of 
poisoning ;  A.  is  proved  to  have  had  malice  against  him,  and  to  have 
purchased  poison,  wrapped  in  a  particular  paper,  the  paper  is  found 
in  a  secret  drawer,  but  the  poison  gone.  The  evidence  of  these  facts 
is  direct ;  the  facts  themselves  are  indirect  and  circumstantial,  as  ap- 
plicable to  the  inquiry  whether  a  murder  has  been  committed,  and 
whether  it  was  committed  by  A. 

So  rapid  are  our  intellectual  processes,  that  it  is  frequently  diffi- 
cult, and  even  impossible,  to  trace  the  connection  between  an  act  of 
the  judgment,  and  the  train  of  reasoning  of  which  it  is  the  result ; 
and  the  one  appears  to  succeed  the  other  instantaneously,  by  a  kind 


PRESUMPTIONS.  13 

of  necessity,  as  the  thunder  follows  the  flash.  This  fact  obtains  most 
commonly  in  respect  of  matters  which  have  been  frequently  the  ok- 
jects  of  mental  association. 

In  matters  of  direct  testimony,  if  credence  be  'given  to  the  re 
lators,  the  act  of  hearing  and  the  act  of  belief  though  really  not  so, 
seem  to  be  contemporaneous.  But  the  case  is  very  diEferent  when 
we  have  to  determine  upon  circumstantial  evidence,  the  judgment 
in  respect  of  which  is  essentially  deductive  and  wferential.  There 
is  no  apparent  necessary  connection  between  the  facts  and  the  de- 
duction ;  i\iii  facts  may  be  true,  and  the  deduction  erroneous,  and 
it  is  only  by  comparison  with  the  results  of  observation  in  similar  or 
analogous  circumstances,  that  we  acquire  confidence  in  the  accuracy 
of  our  conclusions. 

The  term  presumptive  is  frequently  used  as  synonymous  with 
CIRCUMSTANTIAL  EVIDENCE  ;  but  it  is  not  SO  uscd  with  strict  accu- 
racy. The  word  presumption,  ex  vi  termini,  imports  an  inference  from 
facts ;  and  the  adjunct  presumptive,  as  applied  to  evidentiary  facts,  im- 
plies  the  certainty  of  some  7-elation  between  the  facts  and  thei  nference 
•Circumstances  generally,  but  not  necessarily,  lead  to  partic- 
ular inferences  ;  for  the  facts  may  be  indisputable,  and  yet  [*!'?] 
their  relation  to  the  principal  fact  may  be  only  apparent  and 
not  real ;  and  even  when  the  connection  is  real,  the  deduction  may  be 
erroneous.  Circumstantial  and  presumptive  evidence  differ  there- 
fore as  genus  and  species. 

The  force  and  effect  of  circumstantial  evidence  depend  upon  its 
incompatibility  with,  and  incapability  of,  explanation  or  solution  upon 
any  other  supposition  than  that  of  the  truth  of  the  fact  which  it  is 
adduced  to  prove  ;  the  mode  of  argument  resembling  the  method  of 
demonstration  by  the  reductio  ad  absurdum.  But  this  is  a  part  of 
the  subject  which  will  more  appropriately  admit  of  amplification  in 
a  future  part  of  this  essay. 


SECTION    2. 

PRESUMPTIONS. 

It  h  essential  to  a  just  view  of  the  subject  that  our  notions  of  the 
nature  of  presumptions  be  precise  and  distinct.  A  presumption 
is  a  probable  consequence,  drawn  from  facts,  (either  certain,  or 
proved  by  direct  testimony,)  as  to  the  truth  of  a  fact  alleged,  but 
of  which  there  is  no  direct  proof.     It  follows,  therefore,  that  a  pre- 


14  PRESUMPTIONS. 

sumption  of  any  fact  is  an  inference  of  that  fact  from  others  that  are 
known*.     The  word  presumption,  therefore,  inherently  imports  a  con- 
clusion of  the  judgment ;  and  it  is  applied  to  denote  such  facts  or  moral 
phsenomena,  as  from  experience  we  know  to  be  invariably  or  commonly 
connected  with  some  other  related  fact.    A  wounded  and  bleeding  body 
is  discovered  :  it  has  been  plundered  ;  wide  and  deep  footmarks  are 
found  in  a  direction  proceeding  from  the  body  ;  or  a  person  is  seen 
running  from  the  spot.     In  the  one  case  are  observed  *marks 
[  *18  ]  of  flight,  in  the  other  is  seen  the  fugitive,  and  we  know  that 
guilt  naturally  endeavors  to  escape  detection.    These  circum- 
stances induce  the  presumption  that  crime  has  been  committed  ;  the 
presumption  is  a  conclusion  or  consequence  from  the   circumstances. 
The  antecedent  circumstances  therefore  are  one  thing,  the  presump- 
tion from  them  another  and  diflFerent  one.     Of  presumptions  afibrded 
by  moral  phsenomena,  a  memorable  instance  is  recorded  in  the  judg- 
ment of  k5olomon,  whose  knowledge  of  the  all-powerful  force  of  ma- 
ternal love  supplied  him  with  an  infallible  criterion  of  truthf .     So, 
when  Aristippus,  who  had  been  cast  away  on  an  unknown  shore,  saw 
certain  geometrical  figures  traced  in  the  sand,  his  inference  that  the 
country  was  inhabited  by  people  conversant  with  mathematics  was  a 
presumption  of  the  same   nature^.     It  is  evident,  that  this  kind  of 
reasoning,  is  not  peculiar  to  legal  science,   but  is  a  logical  process 
common  to  every  subject  of  human  investigation§. 

All  presumptions  connected  with  human  conduct  are  inferences 
founded  upon  the  observation  of  man's  nature  as  a  sentient  being 
and  a  moral  agent ;  and  they  are  necessarily  infinite  in  variety  and 
number,  differing  according  to  the  diversities  of  individual  character 
and  to  the  innumerable  and  ever-changing  situations  and  emergen- 
cies in  which  men  are  placed.  Hence  the  importance  of  a  know- 
ledge of  the  instincts,  affections,  desires,  and  moral  capabiUties  of 
our  nature,  to  the  correct  deduction  of  such  presumptions  as  are 
founded  upon  them,  and  which  are  therefore  called  natural  pre- 
sumptions. || 

Legal    presumptions  are  founded   upon  natural  presumptions, 
being  such  natural  presumptions  as  are  *connected  with 
[  *19  ]     human  actions  so  far  as  they  are  authoritatively  consti- 
tuted by  the  legislator  or  deduced  by  the  magistrate. 

*  Per  Abbot,  C.  J.  in  Rex  v.  Burdett,  iv.  B.  and  Aid.  151. 

t  Domat's  Civil  law,  b.  iii.  tit.  6. 

J  Gambier's  Introd.  to  the  study  of  Moral  Evidence,  p.  55. 

§  Greenleaf  s  Law  of  Ev.  vol.  I  §  44.  (ed.  2.) 

II  Mascardus  de  Probationibus,  vol.  iii.  Conclusio  mccxxvi. 


PRESUMPTIONS.  15 

The  civilians  divided  legal  presumptions  into  two  classes,  namely, 
prcesumptiones  juris  et  dejure,  and  prcesumptiones  juris  simply. 

Presumptions  of  the  former  class  Nvere  such  as  were  considered 
to  be  founded  upon  a  connection  and  relation  S)  intimate  and  cer- 
tain between  the  fact  known  and  the  fact  sought,  that  the  latter  was 
deemed  to  be  an  infalhble  consequence  from  the  existence  of  the 
first.  Such  presumptions  were  called  jJ^cesumptiones  juris,  because 
their  force  and  authority  were  recognized  by  the  law  ;  and  de  jure, 
because  they  were  made  the  foundation  of  certain  specific  le^-al 
consequences,*  against  which  no  argument  or  evidence  was  admis- 
sible ;  while  res  prcesumptiones  juris  simply,  though  deduced  from 
facts  characteristic  of  truth,  were  always  subject  to  be  overthrown 
by  proof  of  facts  leading  to  a  contrary  pi'esumption. 

In  matters  of  property,  the  principal  modifications  of  which  are 
matters  of  positive  institution,  the  laws  of  every  country  have 
created  artificial  legal  presumptions,  grounded  upon  reasons  of 
policy  and  convenience,  to  prevent  social  discord  and  to  fortify 
private  right.  The  justice  and  policy  of  such  regulations  have 
been  thus  eloquently  enforced  :  "  Civil  cases  regard  property  :  now, 
although  property  itself  is  not,  yet  almost  everything  concerning 
property,  and  all  its  modifications,  is  of  artificial  contrivance.  The 
rules  concerning  it,  become  more  positive,  as  connected  with  positive 
institutions.  The  legislator  therefore  always,  the  jurist  frequently, 
may  ordain  certain  methods,  by  which  alone  they  will  suffer  such 
matters  to  be  known  and  established  ;  because,  their  very 
essence,  for  the  greater  part,  *depends  on  the  arbitrary  [  "20  ] 
conventions  of  men.  Men  act  on  them  with  all  the  power 
of  a  creator  over  his  creatures.  They  make  fictions  of  law  and 
presumptions  of  law  Qjrcesumptiones  juris  et  de  jure")  according  to 
their  ideas  of  utility — and  against  those  fictions,  and  against  pre- 
sumptions so  created,  they  do  and  may  reject  all  evidence.!'' 

But  in  penal  jurisprudence,  man  as  a  physical  being  and  a  moral 
agent,  such  as  he  is  by  natural  constitution  and  by  the  influences 
of  social  condition,  is  the  subject  of  inquiry.  Punitive  justice  is 
applied  to  injurious  actions  proceeding  from  malignity  of  purpose, 
and  not  to  physical  actions  merely.  It  has  been  said  with  great 
force  and  accuracy,  that  "  where  the  subject  is  of  a  physical  nature, 

*  Menochius  Dc  Prsesumptionibus,  lib.  i.  q.  3.  Essai  sue  la  nature,  les  diffc'rentes 
especes,  et  les  divers  degres  de  force  des  Preuves,  par  Gabriel,  p.  369. 

t  Burke's  Works,  vol.  ii.  p,  623.  (Ed.  1834,  printed  by  Holdsworth  and  Ball.) 
Mascardus  De  Probationibus,  yoI.  iii.    Conclnsio  mccxxviii. 


16  PRESUxMPTIONS. 

or  of  a  moral  nature,  independent  of  their  conventions,  men  have 
no  other  reasonable  authority,  than  to  register  and  digest  the  results 
of  experience  and  observation  ;"  and  that  "  the  presumptions  which 
belong  to  criminal  cases  are  those  natural  and  popular  presumptions 
■which  are  only  observations  turned  into  maxims,  like  adages  and 
apophthegms,  and  are  admitted  (when  their  grounds  are  established) 
in  the  place  of  proof,  where  better  is  wanting,  but  are  to  be  always 
overturned  by  counter  proof."*  Hence  therefore  a  third  class  of 
presumptions,  which  the  civilians  called  prcesumptiones  hominis, 
because  they  were  inferred  by  the  sagacity  and  discretion  of  the 
judge  from  the  facts  judicially  before  him.  Such  presumptions  are 
in  fact  natural  presumptions  simply,  deriving  their  force  from  that 
relation  and  connection  which  are  recognized  and  acknowledged  by 
the  unsophisticated  reason  of  all  observing  and  reflecting  men. 

Presumptions  of  every  kind,  to  be  just,  must  be  dictated 
[  *21  ]  *by  nature  and  reason  ;  and  it  is  impossible,  without  a  de- 
reliction of  every  rational  principle,  to  lay  down  positive 
rules  of  presumption,  where  every  case  must  of  necessity  be  con- 
nected with  peculiarities  of  personal  disposition  and  of  concomitant 
circumstances,  and  be  therefore  irreducible  to  any  fixed  principle. 
In  criminal  jurisprudence,  therefore,  arbitrary  presumptions  should 
be  sparingly,  if  ever  admitted  ;  and  when  they  are  so,  they  not  un- 
frequently  work  injustice.  It  would  be  as  unreasonable  to  subject 
human  actions  to  unbending  rules  of  presumption,  as  to  prescribe  to 
the  commander  of  a  ship  inflexible  rules  for  his  conduct,  without  any 
latitude  of  discretion  in  the  unforeseen  and  innumerable  accidents 
and  contingencies  of  the  tempest  and  the  ocean.  Where  a  peremp- 
tory presumption  of  legal  guilt  is  not  pernicious  and  unjust,  it  is  in 
general  at  least  unnecessary  ;  for,  if  it  be  a  fair  conclusion  of  the 
reason,  it  will  be  adopted  by  the  tribunals,  without  the  mandate  of 
the  legislature.  There  may,  no  doubt,  be  cases,  where  the  provis- 
ions of  the  law  are  pecuharly  liable  to  be  defeated  or  evaded,  by 
subtle  contrivances  and  shifts  most  difficult  of  prevention.  But, 
even  in  such  cases,  legal  presumptions  can  only  be  justifiable  where 
the  proximate  substituted  fact  of  presumption  is  of  a  guilty  charac- 
ter per  se,  and  would  afibrd,  even  in  the  absence  of  legal  enactment, 
a  strong  moral  ground  of  presumption  indicative  of  the  particular 
act  of  criminality  intended  to  be  repressed,!  so  that  even  in  such 

•  Burke's  Works,  vol.  ii.  p.  62S.     Mascardus  De  Probationibus,  vol.   iii.    Con- 
clusio  MCCXXVIH. 
t  Traite  theorique  et  pratique  des  Preuves,  par  M.  E.  Bonnier,  p.  629. 


PRESUMPTIONS.  17 

cases  the  necessity  and  expediency  of  fixed  legal  presumptions  may 
be  questionable. 

It  is  impossible  to  recall  without  horror  the  sanguinary  law*  which 
made  the  concealment  of  the  death  of  an  illegitimate  child  by  its 
mother,  conclusive  evidence  of  murder,  unless  she  could 
make  proof  by  one  witness  at  least,  that  *the  child  was  [  *22  ] 
born  dead  ;  whereas  in  truth  it  affords  not  even  the  slight- 
est presumption  to  warrant  such  a  conclusion,  since  it  is  more  natu- 
ral and  more  just  to  attribute  the  suppression  to  a  desire  to  conceal 
female  shame  and  to  escape  open  dishonour.  Numerous  collateral 
considerations  concur  to  show  the  cruelty  and  injustice  of  this  par- 
ticular presumption,  which  was  suggested  by  a  corresponding  edict 
of  Henry  II.  of  France,!  and  to  the  discredit  of  our  country  has 
been  but  recently  expunged  from  the  statute  book.  J 

As  evidentiary  circumstances  and  their  combinations  are  infinitely 
varied,  so  also  are  the  presumptions  to  which  they  lead  ;  and  a  com- 
plete enumeration  would  in  either  case  be  impracticable.  The  wri- 
ters on  the  civil  law  have  made  a  comprehensive  and  instructive 
collection  of  facts  and  inferential  conclusions,  in  relation  to  a  vast 
number  of  actions  connected  with  legal  accountability.  §  But  many 
things  advanced  by  those  laborious  and  elaborate  authors  have  rela- 
tion to  a  state  of  society,  and  to  legal  institutions  and  modes  of  pro- 
cedure, wholly  dissimilar  from  our  own.  The  law  of  England  ad- 
mits of  no  such  thing  as  the  semi-plena  probatio,  founded  on  circum- 
stances of  conjecture  and  suspicion  only,  which  in  many  countries 
governed  by  the  Roman  law  were  held  to  warrant  the  infliction  of 
torture  with  a  view  to  compel  admissions  and  complete  imperfect 
proof.  Hence  the  total  inapphcability  with  us  of  the  sub-divisions 
of  indicia,  signa,  adminicula,  conjecturce,  duhia,  and  suspiciones, 
which  are  found  in  the  writers  of  other  countries  whose  jurisprudence 
is  founded  upon  that  of  Rome — subdivisions  which  appear  to  bo  ar- 
bitrary, vague,  and  useless.  But  it  is  manifest  that,  under 
legal  institutions  *which  admitted  of  compulsory  self-accu-  [  *23  ] 
sation,  in  order  to  complete  proof  insufficient  and  inconclusive 
in  itself,  and  where  the  laws  were  administered  by  a  single  judge, 
without  the  salutary  restraints  of  publicity  and  popular  observation, 

•  Stat.  21  Jac.  I.  c  27. 

t  Domat,  b.iii.  tit.  6.  t  St.  ix.  G.  IV.  c.  31.  s.  14. 

§  Aureum  Repertorium  De  Prsesnmptionibus.  Dom.  Hippolyto  Bonacossa  (Venet. 
1580.)  and,  inter  alia,  the  several  works  of  Menochius,  Mascardus,  AlciatuB,  De 
Pr  SBSumptionibug . 

5 


18  PRE6UMPTI0NS. 

an  accurate  and  elaborate  record  of  the  multitudinous  actions  and  oc- 
currences which  had  been  submitted  to  the  criminal  tribunals,  oper- 
ated as  important  limitations  upon  the  tyranny  and  inconstancy  of 
judicial  discretion. 

It  is  calculated  to  excite  surprise,  that  arbitrary  technical  rules 
should  ever  have  been  adopted,  for  estimating  the  force  and  effect  of 
particular  facts  as  leading  to  presumptions  ;  a  matter  purely  one  of 
reason  and  logic.  It  is  probable  nevertheless,  that  the  attempt  ori- 
ginated in  the  desire  to  escape  a  still  greater  absurdity.  "  Testis 
unus,  testis  nullus"  "  unus  testis  non  est  audiendus^''^  were  funda- 
mental maxims  of  the  text  writers  on  the  Civil  and  Canon  Laws,  and 
of  most  ancient  codes*,  as  they  still  are  of  judicial  procedure  in  many 
parts  of  Europef .  Since  presumptions  have  not  same  force  as  direct 
evidence,  it  was  hence  supposed  to  be  required,  as  a  logical  se- 
quence, that  there  should  be  concurrence  of  three  presumptions,  as 
imaginary  equivalent  for  the  testimony  of  two  ocular  witnesses, 
where  such  testimony  was  not  to  be  had.  It  is  discreditable  to  the 
state  of  moral  and  legal  science  that  these  absurd  and  antiquated 
notions,  worthy  of  the  darkest  ages  of  society,  should  have  been 
countenanced  and  perpetuated  in  the  legislation  of  several  of  the 

nations  of  Europe  even  in  the  present  century^.  It 
[  *24  ]     is  obvious  that  a  *single  presumption  may  be  conclusive, 

and  that  an  accumulation  of  many  presumptions  may  be  of 
but  little  weight.  The  simplest  and  most  elementary  dictates  of  com- 
mon sense  require  that  presumptions  should  not  be  numbered  mere- 
ly, but  that  they  should  be  weighed  according  to  the  principles  which 
are  applied  in  estimating  the  effect  of  testimonial  evidence. 

The  prevalence  of  these  fallacious  methods  of  judging  of  the  force 
of  evidence,  explains  the  foundation  of  the  practice,  abhorrent 
to  every  principle  of  judicial  integrity,  and  which  still  extensively 
prevails,  of  condemning  to  a  minor  punishment  persons  who  may  be 
innocent,  but  against  whom  there  may  exist  apparent  grounds  of 
strong  presumption,  through  not  that  exact  kind  and  amount  of 
proof  which  the  rules  of  evidence  arbitrarily  and  unreasonably  re- 

•  Deut.  ch..  xvii.  6,  7 ;  xix.  15.  Numb.  cli.  xxxT.  30.  Michaelis  on  the  Laws  of 
Moses,  by  Smith,  vol.  iv.  Art.  ccxcix. 

t  Code  Hollandais,  ISSg  J  Code  Penal  d'  Autriche,  Code  de  Bayiere,  and  many 
other  German  Codes. 

%  Code  Crimiael  de  Frusse,  1805 ;  Code  Pe'nal  d'  Autriche,  1833;  and  see  Bon- 
nier, vi  supra,  p.  610 


PRESUMPTIONS.  19 

quire ;  as  if  a  middle  term  in  criminal  jurisprudence  were  not  an 
absurdity  and  self-contradictory*. 

The  unreasonable  stress,  which  in  many  countries,  whose  criminal 
procedure  is  derived  from  the  Civil  Law,  is  laid  upon  the  confession 
of  the  accused,  and  the  unwarrantable  means  which  are  resorted  to, 
in  order  to  obtain  it,  are  the  natural  results  of  arbitrary  and  unphi- 
losophical  rules  of  evidence,  which  necessarily  have  the  effect  of 
closing  many  of  the  channels  of  truth  ;  and  frequently  render  it  so 
difiScult  to  obtain  full  legal  proof  of  crime,  that  a  late  eminent  jurist 
and  criminal  judge  declared,  that  unless  a  man  chose  to  perpetrate 
liis  crimes  in  public,  or  to  confess  them,  he  need  not  fear  a  convic- 
tionf. 

*Attempts  have  been  made  by  our  own  judicial  writers,     [  *25  ] 
but  with  no  useful  result,  to  classify  presumptions  in  a 
more  general  way  under  terms  expressive  of  their  effect,^  as  vio- 
lent or  NECESSARY,    PROBABLE    or  GRAVE,  and  SLIGHT. §      But  this 

arrangement  is  specious  and  fanciful  rather  than  practical  and  real ; 
nor  is  it  entirely  accurate,  since  a  presumption  may  be  violent  and 
yet  not  necessary.  II  A  more  precise  and  intelligible  classification 
of  presumptions  is  into  violent  or  strong,  and  slight.^  But  it  is  im- 
possible thus  to  classify  more  than  a  comparatively  few  of  the  infi- 
nite variety  of  circumstances  connected  with  human  actions  and 
motives,  or  to  lay  down  rules  for  distinguishing  presumptions  of  one 
of  these  classes  from  those  of  another ;  and  the  terms  of  designa- 
tion, from  the  inherent  imperfections  of  language,  although  not 
wholly  destitute  of  utility,  are  unavoidably  defective  in  precision. 
We  can  therefore  only  usefully  apply  these  epithets  as  relative 
terms  ;  and  the  effect  of  particular  facts  must  of  necessity  depend 
upon  the  reality  and  closeness  of  the  connection  between  the  princi- 
pal and  secondary  facts,  and  upon  a  variety  of  considerations  pecu- 
liar to  each  individual  case,  and  can  no  more  be  predicted  than  the 

*  See  several  cases  of  the  kind  ia  Narratives  of  Remarkable  Criminal  Trials,  trans- 
lated from  the  German  of  Ansclm  Ritter  Von  Feucrbach,  by  Lady  DufF  Gordon. 
At  Berne,  in  1842,  a  man  accused  of  the  crime  of  poisoning  was  sentenced  to  six 
years'  imprisonment,  as  vehementement  suspect. 

t  Ed,  Rev.  Ixxxii,  p.  330  ;  and  see  in  Christison  on  Poisons,  p.  61.  ed.  2,  a  case 
where  the  crime  of  murder  by  poisoning  was  considered  by  the  court  as  not  fully 
proved  because  the  prisoner  would  not  confess,  but  on  account  of  the  probability  of 
his  guilt  he  was  condemned  to  fifteen  years'  imprisonment. 

i  Bentham's  Rationale  of  Judicial  Evidence,  b.  i,  ch.  vi. 

§  Coke  on  Litt.  6.  b.    Blackstone's  Coram,  vol.  iv.  p.  353. 

II  See  Menochius  de  Prajs.,  lib.  1.  q.  3.  nos.  1,  2,  3,  and  Gabriel,  ut  supra,  p.  373. 

IT  Best  on  Presumptions,  p.  40,  and  the  authorities  cited. 


20  RELATIVE   VALUE   OF  DIRECT   AND 

boundaries  can  be  defined  of  the  separate  colours  uvhich  form  the 
solar  bow. 

By  various  statutes,  many  acts  are  made  legal  presumptions  of 
guilt,  and  the  onus  of  proving  any  matter  of  defence  is  expressly 
cast  upon  the  party  accused  ;  but,  -with  these  exceptions,  the  truth 

of  every  accusation  is  determined  by  the  voice  of  a  jury, 
[  *26  ]     upon  consideration  of  the  intrinsic  and  *independent  merits 

of  each  particular  case,  acting  upon  those  principles  of 
reason  and  judgment  by  which  mankind  are  governed  in  all  other 
cases  where  the  same  intellectual  process  is  called  into  exercise, 
unfettered  by  any  obligatory  and  inflexible  presumptions.  The  in- 
expediency and  inefificacy  of  positive  presumptions,  as  indications  of 
the  criminality  of  intention,  in  which  alone  consists  the  essence  of 
legal  guilt,  have  been  thus  exposed  with  equal  force  and  elegance 
by  the  hand  of  a  master : — "  The  connection  of  the  intention  and 
the  circumstances,  is  plainly  of  such  a  nature,  as  more  to  depend 
on  the  sagacity  of  the  observer  than  on  the  excellency  of  any  rule. 
The  pains  taken  by  the  civilians  on  that  subject  have  not  been  very 
fruitful ;  and  the  English  law-writers  have,  perhaps  as  wisely,  in  a 
manner  abandoned  the  pursuit.  In  truth,  it  seems  a  wild  attempt  to 
lay  down  any  rule  for  the  proof  of  intention  by  circumstantial  evi- 
dence."* 


SECTION    3. 

RELATIVE    VALUE   OF    DIRECT    AND    INDIRECT    OR    CIRCUMSTANTIAL 

EVIDENCE. 

The  foregoing  observations  naturally  lead  to  a  comparison  of  the 
relative  value  of  Direct  and  Indirect  or  Circumstantial  Evidence ; 
an  inquiry  which  becomes  the  more  necessary,  on  account  of  some 
novel  and  questionable  doctrines  which  have  received  countenance 
even  from  the  judgment-seat. 

The  best  writers,  ancient  and  modem,  on  the  subject  of  evidence, 

have  concurred  in  treating  circumstantial  as  inferior  in  cogency  and 

effect  to  direct  evidence  ;  a  conclusion  which  seems  to  fol- 

[  *27  ]     low  necessarily  from  the  very   nature  of  *the   different 

kind  of  evidence.!     But  language  of  a  directly  contrary 

*  Burke's  Works,  ut  supra,  vol.  ii.  p.  623. 

t  Menochius  De  Praesumptionibus,  lib.  1.  quest.  1.  6.    MascarbusDe  Probationibus 


CIRCUMSTANTIAL  EVIDENCE.  21 

import  has  been  so  often  used  of  late,  by  authorities  of  no  mean 
note,  as  to  have  become  almost  proverbial. 

It  has  been  said  that  "  circumstances  are  inflexible  proofs ;  that 
"witnesses  may  be  mistaken  or  corrupted,  but  things  can  be 
neither.*"  .  "  Circumstances,"  says  Paley,  "  cannot  lie.f "  It  is 
astonishing  that  sophisms  like  these  should  have  passed  current 
without  animadversion.  The  "  circumstances"  are  assumed  to  be 
in  every  case  established,  beyond  the  possibility  of  mistake  ;  and  it 
is  implied,  that  a  circumstance  established  to  be  true,  possesses 
some  mysterious  force  peculiar  to  facts  of  a  certain  class.  Now,  a 
circumstance  is  neither  more  nor  less  than  a  minor  fact,  and  it  may 
be  admitted  of  all  facts,  that  they  cannot  lie  ;  for  a  fact  cannot  at  the 
same  time  exist  and  not  exist :  so  that  in  truth,  the  doctrine  is  merelv 
the  expression  of  a  truism,  that  a  fact  is  a  fact.  It  may  also  be  admit- 
ted that  "  circumstances  are  inflexible  proofs,"  but  assuredly  of  noth- 
ing more  than  of  their  own  existence  :  so  that  this  assertion  is  only  a 
repetition  of  the  same  truism  in  diflerent  terms.  It  seems  also  to 
have  been  overlooked,  that  circumstances  and  facts  of  every  kind 
must  be  proved  by  human  testimony  ;  that  although  "  circumstances 
cannot  lie,"  the  narrators  of  them  may  ;  and  that,  like  witnesses  of 
all  other  facts,  they  may  be  biased  or  mistaken.  So  far  then,  cir- 
cumstantial possesses  no  advantage  over  direct  evidence. 

*A  distinguished  statesman  and  orator  has  advanced  in  [  •28  ] 
unqualified  terms  the  proposition,  supported,  he  alleges, 
by  the  learned,  that  "  when  circumstantial  proof  is  in  its  greatest 
perfection,  that  is,  when  it  is  most  abundant  in  circumstances,  it  is 
much  superior  to  positive  proof."J  Paley  has  said,  with  more  of 
caution,  that  "  a  concurrence  of  well  authenticated  circumstances 
composes  a  stronger  ground  of  assurance  than  positive  testimony, 
unconfirmed  by  circumstances,  usually  afibrds."§  Mr.  Baron  Legge, 
upon  the  trial  of  Mary  Blandy  for  the  murder  of  her  father  by 
poison, (I  told  the  jury  that  where  "  a  violent  presumption  necessari- 
ly arises  from  circumstances,  they  are  more  convincing  and  satisfac- 
tory than  any  other  kind  of  evidence,  because  facts  cannot  lie.*' 
* 

vol.  i.  quest.  8.  n.  8,  Burnett  on  the  C.  L.  of  Scotland,  p.  506.  Starkie's  Law  of 
Evidence,  vol.  i.  pp.  515,  521.  (2nd  ed.)  The  Theory  of  Presumptive  Proof  ;  Bentb, 
Jud.  Ev.  vol.  iii.  ch.  xv.  s.  iv. 

*  Burnett  on  the  C  L.  of  Scotland,  p.  523. 

t  Principles  of  Moral  aud  Political  Philosophy,  b.  vi.  ch.  ix. 

I  Burke's  Works,  ut  suyra,  vol.  ii.  p.  624. 

§  Principles  of  Moral  and  Political  Philosophy,  b.  vi.  ch,  ix. 

II  State  Trials,  vol.  xviii.  p.  1187. 


22  RELATIVE   VALUE   OF   DIRECT   AND 

Mr.  Justice  Buller,  in  hia  charge  to  the  jury  in  Captain  Donellan's 
case,  declared,  "  that  a  presumption  -which  necessarily  arises  from 
circumstances  is  very  of.ten  more  convincing  and  more  satisfactory 
than  any  other  kind  of  evidence,  because  it  is  not  within  the  reach 
and  compass  of  human  abiUties  to  invent  a  train  of  circumstances 
"which  shall  be  so  connected  together  as  to  amount  to  a  proof  of 
guilt,  without  affording  opportunities  of  contradicting  a  great  part  if 
not  all  of  those  circumstances.*" 

It  is  obvious  that  the  doctrine  laid  down  in  these  several  passages 
is  propounded  in  language  which  not  only  does  not  accurately  state 
the  question,  but  implies  a  fallacy,  and  that  extreme  cases — the 
strongest  ones  of  circumstantial,  and  the  weakest  of  positive  evi- 
dence— have  been  selected  for  the  illustration  and  support 
[  *29  ]  of  a  general  position.  *"  A  presumption  which  necessari- 
ly arises  from  circumstances"  cannot  admit  of  dispute,  and 
requires  no  corroboration  ;  but  then  it  cannot  in  fairness  be  contrast- 
ed with  and  opposed  to  positive  testimony,  unless  of  a  nature  equally 
cogent  and  infallible.  If  evidence  be  so  strong  as  necessarily  to 
produce  certainty  and  conviction,  it  matters  not  by  what  hind  of 
evidence  the  effect  is  produced ;  and  the  intensity  of  the  proof  must 
be  precisely  the  same,  whether  the  evidence  be  direct  or  circumstan- 
tial. It  is  not  intended  to  deny  that  circumstantial  evidence  affords 
a  safe  and  satisfactory  ground  of  assurance  and  belief;  nor  that  in 
many  individual  instances  it  may  be  superior  in  proving  power  to 
other  individual  cases  of  proof  by  direct  evidence.  But  a  judgment 
based  upon  circumstantial  evidence  cannot,  in  any  case,  be  more 
satisfactory  than  when  the  same  result  is  produced  by  direct  evi- 
dence, free  from  suspicion  of  bias  or  mistake. 

Perhaps  no  single  circumstance  has  been  so  often  considered  as 
certain  and  unequivocal  in  its  effect,  as  the  annodomini  water-mark 
usually  contained  in  the  fabric  of  writing-paper,  and  in  many  instances 
it  has  led  to  the  exposure  of  fraud  in  the  propounding  of  forged  as 
genuine  instruments.  But  it  is  beyond  any  doubt  (and  several  in- 
stances of  the  kind  have  recently  occurred)  that  issues  of  paper 
have  taken  place  bearing  the  water-mark  of  the  year  succeeding 
that  of  its  distribution, — a  striking  exemplification  of  the  fallacy  of 
some  of  the  arguments  which  have  been  remarked  upon.     How  often 

*  Gurney's  Eeport  of  the  Trial  of  John  Donellan,  Esq.  for  the  wilful  murder  of 
Sir  Theodosiaa  Edward  Allesley  Broughton,  Bart.,  at  the  Assize  at  Warwick,  March 
30th,  1781. 


CIRCUMSTANTIAL   EVIDENCE.  23 

has  it  been  iterated  in  such  cases,  that  circumstances  are  inflexible 
facts,  and  that  facts  cannot  lie ! 

The  proper  effect  of  circumstantial,  as  compared  with  direct  evi- 
dence, was  thus  more  accurately  stated  by  Lord  Chief  Baron  Macdo- 
nald.  "  When  circumstances  connect  themselves  closely  with  each 
other,  when  they  form  a  large  and  strong  body,  so  as  to 
carry  conviction  to  the  *minds  of  a  jury,  it  mat  be  proof  of  [  *30  ] 
a  more  satisfactory  sort  than  that  which  is  direct.  In  some 
lamentable  instances  it  has  been  known  that  a  short  story  has  been 
got  by  heart,  by  two  or  three  witnesses  ;  they  have  been  consistent 
with  themselves,  they  have  been  consistent  with  each  other,  swear- 
ing positively  to  a  fact,  which  fact  has  turned  out  afterwards  not  to 
be  true.  It  is  almost  impossible  for  a  variety  of  witnesses,  speaking 
to  a  variety  of  circumstances,  so  to  concert  a  story,  as  to  imposo  upon 
a  jury  by  a  fabrication  of  that  sort,  so  that  where  it  is  cogent,  strong, 
and  powerful,  where  the  witnesses  do  not  contradict  each  other,  or 
do  not  contradict  themselves,  it  mat  be  evidence  more  satisfactory 
than  even  direct  evidence  ;  and  there  are  more  instances  than  one 
where  that  has  been  the  case."*  In  another  case  the  same  learned 
judge  said,  "  where  the  proof  arises  from  a  number  of  circumstan- 
ces, which  we  cannot  conceive  to  be  fraudulently  brought  together 
to  bear  upon  one  point,  that  is  less  fallible  than  under  some  circum- 
stances direct  evidence  mat  BE.f " 

But,  in  truth,  direct  and  circumstantial  evidence  ought  not  to  be 
placed  in  contrast,  since  they  are  not  mutually  opposed ;  for  evidence 
of  a  circumstantial  and  secondary  nature  can  never  be  justifiably  re- 
sorted to,  except  where  evidence  of  a  direct  and  therefore  of  a  supe- 
rior nature  is  unattainable. 

The  argument  founded  upon  the  abundance  of  the  circumstances, 
and  the  consequent  opportunities  of  contradiction  which  they  afford, 
belongs  to  another  part  of  the  subject.  While  each  of  these  inci- 
dents adds  greatly  to  the  probative  force  of  circumstantial  evidence 
in  particular  cases,  they  have  clearly  no  connection  with  an  inquiry 
into  the  value  of  circumstantial  evidence  in  the  abstract.  However 
numerous  may  be  the  independent  circumstances  to  *which 
the  witnesses  depose,  the  result  cannot  be  of  a  different  kind  [  *31  ] 
from,  or  superior  to,  that  strong  moral  assurance,  which  is 

*  Rex  V.  Patch,  Surrey  Spring  Assizes,  1806. 

t  Rex  t".  Smith,  for  Arson,  Old  Bailey,  June  16,  1818.  Short  band  Report  by 
Gurney. 


24  RELATIVE   VALUE   OF  DIRECT   AND 

the  consequence  of  satisfactory  proof  by  direct  testimony,  and  for 
•which,  if  such  proof  be  attainable,  every  tribunal,  every  reasonable 
mind  vrould  reject  any  attempt  to  substitute  indirect  or  circumstan- 
tial evidence,  as  inadmissible,  and  as  affording  the  strongest  reason 
for  suspicion  and  disbelief. 

It  has  been  said,  that  "  though  in  most  cases  of  circumstantial 
evidence  there  be  a  ijossihility  that  the  prisoner  may  be  innocent, 
the  same  often  holds  in  cases  of  direct  proof,  where  witnesses  may 
err  as  to  identity  of  person,  or  corruptly  falsify,  for  reasons  that  are 
at  the  time  unknown.*"  This  observation  is  unquestionably  true. 
Even  the  testimony  of  the  senses,  though  it  afford  the  safest  ground 
of  moral  assurance,  cannot  be  implicitly  depended  upon,  even  where 
the  veracity  of  the  witnesses  is  above  all  suspicion.  Sir  Thomas 
Davenant,  an  eminent  barrister,  a  gentleman  of  acute  mind  and 
strong  understanding,  swore  positively  to  the  persons  of  two  men, 
whom  he  charged  with  robbing  him  in  the  open  daylight.  But  it 
was  proved  by  the  most  conclusive  evidence,  that  the  men  on  trial 
were,  at  the  time  of  the  robbery,  at  so  remote  a  distance  from  the 
spot  that  the  thing  was  impossible.  The  consequence  was,  that  the 
men  were  acquitted,  and  some  time  afterwards  the  robbers  were 
taken,  and  the  articles  stolen  found  upon  them.  Sir  Thomas,  on 
seeing  these  men,  candidly  acknowledged  his  mistake,  and  it  is  said 
gave  a  recompense  to  the  persons  he  prosecuted,  and  who  so  narrowly 
escaped  convictionf.  It  is  probable  that  Sir  Thomas  was  deceived 
by  the  broad  glare  of  sun-light,  but  there  can  be  no  doubt  of  the 
sincerity  of  his  impressions. 

*Many  similar  instances  are  upon  record  of  the  fallibility 
[  *32  ]  of  human  testimony,  even  as  to  matters  supposed  to  be 
grounded  upon  the  clearest  evidence  of  the  senses,  and 
where  the  misconception  has  related  to  the  substantive  matters  of 
judicial  inquiry.  It  has  been  said  with  the  strictest  philosophical 
truth,  that  "  proof  is  nothing  more  than  a  presumption  of  the  high- 
est orderf."  But  these  considerations,  instead  of  establishing  the 
superior  efficacy  of  circumstantial  evidence,  seem  irresistibly  to  lead 
to  the  conclusion  that  it  is,  a  fortiori,  more  probable  that  similar  mis- 
conception may  take  place  as  to  collateral  facts  and  incidents,  to 
which  perhaps  particular  attention  may  not  have  been  excited. 

*  Burnett  on  the  C.  L.  of  Scotland,  p.  524. 

t  Rex  V.  Wood  and  Brown  :  State  trials,  vol.  xxviii.  p.  819.  Annual  Register, 
1784. 

*  Per  Lord  Erskine,  in  the  Banbury  Peerage  Case. 


CIRCUMSTANTIAL   EVIDENCE.  25 

There  is  another  source  of  fallacy  and  danger,  to  which,  as  already 
intimated,  circumstantial  evidence  is  peculiarly  liable,  and  of  -which 
it  is  necessary  to  be  especially  mindful.  Where  the  evidence  is  di- 
rect, if  the  testimony  be  credible,  belief  is  the  immediate  and  neces- 
sary result ,  whereas,  in  cases  of  circumstantial  evidence,  processes 
of  inference  and  deduction  are  essentially  involved ; — frequently  of 
a  most  delicate  and  perplexing  character, — ^liable  to  numberless  causes 
of  fallacy,  inherent  in  the  very  nature  of  the  human  mind  itself, 
which  has  been  profoundly  compared  to  the  disturbing  power  of  an 
uneven  mirror,  imparting  its  own  nature  upon  the  true  nature  of 
things*.  Mr.  Baron  Alderson,  upon  a  trial  of  this  kind,  said,  "  it 
was  necessary  to  warn  the  jury  against  the  danger  of  being  misled 
by  a  train  of  circumstantial  evidence.  The  mind  was  apt,"  he  said, 
"  to  take  a  pleasure  in  adapting  circumstances  to  one  another,  and 
even  in  straining  them  a  little,  if  need  be,  to  force  them  to  form 
parts  of  one  connected  whole ;  and  the  more  ingenious  the  mind  of 
the  'individual,  the  more  likely  was  it,  considering  such 
matters,  to  overreach  and  mislead  itself,  to  supply  some  [  *33  ] 
little  link  that  is  wanting,  to  take  for  granted  some  fact 
consistent  with  its  previous  theories,  and  necessary  to  render  them 
complete! ." 

It  may  be  objected  that  the  foregoing  observations  tend  to  create 
distrust  in  all  human  testimony.  While  it  must  be  admitted  that 
the  senses  cannot  be  implicitly  depended  upon,  it  is  certain  that  their 
liabiHty  to  mistake  may  be  greatly  diminished  by  habits  of  accurate 
observation  and  relation.  The  general  conformity  of  our  impres- 
sions to  truth  and  nature,  and  the  universal  opinion  and  practice  of 
mankind,  establish  the  reasonableness  and  propriety  of  our  general 
faith  in  testimonial  evidence.  The  interest  to  which  all  controverted 
matters  of  fact  give  occasion,  is  a  manifestation  of  the  preference  in 
the  human  mind  of  truth  to  falsehood  ;  and  finally,  the  number  of 
mistaken  inferences  from  the  testimony  of  the  senses  is  inconceivably 
small,  as  compared  with  the  almost  infinite  number  of  judgments 
which  are  correctly  drawn  from  evidence  of  the  kind  in  question. 

*  Novum  Organum,  lib,  i.  Aph.  41,  45,    Beat  on  Presumptions,  p.  255 ;  and  see 
Bentham'a  Jud.  Ev.  vol.  iil.  b.  v,  ch,  xv.  a.  iv, 
t  Reg.  V.  Hodgea,  2  Lewin's  C.  C.  227. 


26  THE   SOURCES   AND   CLASSIFICATION   OF 

SECTION    4. 
OF  THE  SOURCES  AND  CLASSIFICATION  OF  CIRCUMSTANTIAL  EVIDENCE. 

In  the  present  state  of  knowledge  there  can  be  little  clanger  of 
mistake  as  to  the  legitimate  subjects  of  human  belief ;  but  how  mel- 
ancholy is  the  degradation  of  the  human  intellect  exhibited  in  tho 
records  of  superstition,  imposture  and  delusion,  of  enthusiasm  and 
credulity,  of  judicial  darkness  and  cruelty,  in  the  pages  of  our  own 

history,  as  well  as  in  those  of  every  other  nation  ! 
[  *84  ]  *A  profound  ignorance  of  the  laws  of  nature,  an  inability  to 
account  for  the  origin  of  moral  evil  and  to  reconcile  its  esist- 
ence  with  the  divine  attributes,  and  the  impulse  to  avenge  wrongs  for 
which  human  institutions  afforded  no  remedy  led  to  an  universal  belief 
in  the  supernatural  interposition  of  the  Supreme  Being  on  behalf  of 
his  injured  moral  offspring.  Of  this  persuasion,  augury,  divination, 
judicial  combat,  the  various  forms  of  trial  by  ordeal,  the  supposed  in- 
timations of  truth  conveyed  by  means  of  apparitions,  and  dreams, 
the  bleeding  of  a  corpse  in  the  presence  of  the  murderer,  and  his 
reluctance  to  touch  it,*  were  so  many  manifestations  ;  while  with  the 
wildest  inconsistency,  the  behef  was  equally  general,  in  the  exist- 
ence and  influence  of  witchcraft  and  other  modes  of  demoniacal 
agency  over  the  minds  and  actions  of  men.  The  history  of  all  na- 
tions affords  lamentable  memorials  of  judicial  murders,  the  natural 
consequences  of  such  mistaken  and  degrading  views.  Without  ad- 
verting to  other  reasons,  it  is  conclusive  against  all  departure  by  the 
Supreme  Being  from  the  ordinary  course  of  his  administration  in 
cases  of  this  nature,  that  so  many  instances  of  erroneous  conviction 
and  execution  have  occurred  in  all  ages  and  in  all  countries. 

The  course  of  external  nature,  and  the  mental  and  physical  con- 
stitution of  man,  and  his  actions  and  moral  and  mechanical  relations, 
are  the  only  true  sources  of  those  facts  which  constitute  circum- 
stantial evidence. 

In  every  inquuy  into  the  truth  of  any  alleged  fact,  as  to  which 
our  means  of  judgment  are  secondary  facts,  there  must  exist  rela- 
tions and  dependencies,  which  are  inseparable  from  the  principal 
fact,  and  which  will  commonly  be  manifested  by  external  appear- 
ances. No  action  of  a  rational  being  is  indifferent  or  independent ; 
and  every  such  action  must  necessarily  be  connected  with  antece- 

*  See  Rex  v.  Staadsfiield,  11  St.  Tr.,  1403 ;  and  Rex  v,  Okeman,  14  ibid.  1324. 


CIRCUMSTANTIAL  EVIDENCE.  27 

dent,  *concomitant,  and  subsequent  conditions  of  mind,  and     [  *35  ] 
external  circumstances,  of  the  actual  existence  of  which, 
though  it  may  not  invariably  be  apparent,  there  can  be  no  doubt. 

A  crime,  so  far  as  it  falls  within  the  cognizance  of  human  tri- 
bunals, is  an  act  proceeding  from  a  wicked  motive  ;  it  follows  there- 
fore that  in  every  such  act,  there  must  be  one  or  more  voluntary 
agents  ;  that  the  act  must  have  corresponding  relations  to  some  pre- 
cise moment  of  time  and  portion  of  space  ;  that  there  must  have  ex- 
isted inducements  to  guilt,  preparations  for,  and  objects  and  instru- 
ments of  crime  ;— and  that  these,  the  means  of  disguise,  flight,  or 
concealment,  the  possession  of  plunder  or  other  fruits  of  crime,  and 
innumerable  other  particulars  connected  with  individual  conduct, 
and  with  moral,  social,  and  physical  relations,  may  afford  materials 
for  the  determination  of  the  judgment.  It  would  be  impracticable 
to  enumerate  the  infinite  variety  of  circumstantial  evidentiary  facts, 
which  of  necessity  are  as  various  as  the  modifications  and  combi- 
nations of  events  in  actual  life.  "  All  the  acts  of  the  party,  all 
things  that  explain  or  throw  light  on  these  acts,  all  the  acts  of  others 
relative  to  the  affair,  that  come  to  his  knowledge  and  may  influence 
him ;  his  friendships  and  enmities,  his  promises,  his  threats,  the 
truth  of  his  discourses,  the  falsehood  of  his  apologies,  pretences  and 
explanations ;  his  looks,  his  speech,  his  silence  where  he  was  called 
to  speak ;  everything  which  tends  to  establish  the  connection  be- 
tween all  these  particulars ; — every  circumstance,  precedent,  con- 
comitant, and  subsequent,  become  parts  of  circumstantial  evidence. 
These  are  in  their  matter  infinite,  and  cannot  be  comprehended 
within  any  rule,  or  brought  under  any  classification."* 

Evidentiary  facts  of  a  circumstantial  nature  are  susceptible  only 
of  a  very  general  arrangement,  into  two  classes ;  namely, 
first,  moral  indications,  afforded  by  the  relations,  *and  Ian-  [  *36  J 
guage,  and  conduct  of  the  party ;  and,  secondly,  facts 
which  are  apparently  extrinsic,  and  mechanical,  and  independent  of 
moral  conduct  and  demeanour :  and  each  of  these  classes  of  facts 
may  be  further  considered,  as  such  facts  are  inculpatory  or  excul- 
patory. But  this  division,  indefinite  as  it  is,  is  grounded  upon  the 
apparent  rather  than  the  real  qualities  of  actions,  and  cannot  be 
regarded  as  strictly  accurate  ;  since  all  the  actions  of  a  rational 
agent  are  prompted  by  motives,  and  are  therefore  really  moral  indi- 
cations, though  it  be  not  always  practicable  to  dovelope  their  moral 
relations. 

»  Burke's  Works,  ii.  623. 


28  MOTIVES   TO   CRIME. 

[*37]  *CHAPTER  III, 

INCULPATORY     MORAL     INDICATIONS. 


Although,  for  reasons  which  have  been  explained,  any  enumcra- 
tion  of  facts  as  invariably  conjoined  with  authoritative  presumptions 
would  be  useless  and  nugatory,  it  is  important  in  illustration  of  the 
general  principles  which  determine  the  relevcincy  and  eifect  of  cir- 
cumstantial evidence,  to  notice  some  particulars  of  moral  conduct, 
of  frequent  occurrence  in  courts  of  criminal  jurisdiction,  which  are 
popularly,  and  on  that  account  judicially  considered  as  leading  to 
important  and  well-grounded  presumptions. 

These  circumstances  may  be  considered  under  the  heads  of  mo- 
tives to  crime,  declarations  indicative  of  intention,  preparations  for 
the  commission  of  crime,  possession  of  the  fruits  of  crime,  refusal 
to  account  for  appearances  of  suspicion,  or  unsatisfactory  explana- 
tions of  such  appearances,  evidence  indirectly  confessional,  and  the 
suppression,  destruction,  simulation,  and  fabrication  of  evidence. 


SECTION     1. 

MOTIVES 'to   crime. 


As  there  must  necessarily  pre-exist  a  motive  to  every  human  ac- 
tion, it  is  proper  to  comprise  in  the  class  of  moral  indications,  those 
particulars  of  external  situation  which  are  usually  observed,  under 
given  circumstances,  to  operate  as  motives  and  inducements  to  the 
commission  of  crime,  as  well  as  such  more  unequivocal  indications 
from  *language  and  conduct  as  directly  and  pointedly 
[  *38  ]  manifest  a  relation  between  the  deed  and  the  mind  of  the 
actor. 

Motives  are  with  relation  to  moral  conduct  what  physical  power  is 
to  mechanics ;  and  both  of  these  kinds  of  impulse  are  equally  under 
the  influence  of  known  laws.  But  in  reasoning  upon  motives  and 
their  resulting  actions,  it  is  impracticable  to  obtain  the  same  sure 
data  as  when  material  phsenomena  only  are  involved,  since  it  is  not 
possible  to  discover  all  the  modifying  circumstances  of  human  con- 
duct, or  to  assign  with  unerring  certainty  the  true  character  of  the 


MOTIVES   TO   CRIME.  29 

motives  from  which  they  spring.  Nevertheless,  we  naturally,  rea- 
sonably, and  safely,  judge  of  men's  motives  by  their  conduct,  as  we 
conclude  from  the  nature  of  the  stream  the  qualities  of  the  fountain 
whence  it  proceeds. 

An  evil  motive  constitutes  in  law  as  in  morals,  the  essence  of 
guilt ;  and  the  existence  of  an  inducing  motive  for  the  voluntary  acts 
of  a  rational  agent,  is  assumed  as  naturally  as  secondary  causes  are 
concluded  to  exist  for  material  phocnomena.  The  predominant  de- 
sires of  the  mind  are  invariably  followed  by  corresponding  volitions 
and  actions.  It  is  therefore  indispensable,  in  the  investigation  of 
moral  actions,  to  look  at  all  the  surrounding  circumstances  which 
connect  the  supposed  actor  with  other  persons  and  things,  and  may 
have  influenced  his  motives. 

The  usual  inducements  to  crime,  are  the  desire  of  avenging  real 
or  fancied  wrongs, — of  obtaining  some  object  of  desire  which  right- 
fully belongs  to  another, — or  of  preserving  reputation,  either  that  of 
general  character  or  the  conventional  reputation  of  sex  or  profession. 
Selfishness  and  malignity  are  subtle  as  well  as  importunate  casuists ; 
and  even  if  it  were  possible  to  enumerate  the  infinite  ways  in  which 
they  lead  to  action,  it  would  be  irrelevant  to  do  so,  since  the  subject 
properly  belongs  to  a  distinct  department  of  moral  science.     It  is' 
always,  however,  a  satisfactory  circumstance  of  corroboration,  when 
in  connection  *with  convincing  facts  an  apparently  adequate 
motive  can  be  assigned  ;  but,  as  the  operations  of  the  mind     [  *39  ] 
are  invisible  and  intangible,  it  is  impossible  to  go  further, 
and  there  may  be  motives  which  no  human  being  beside  the  party 
himself  can  divine.     Undue  or  even  great  stress  must  not  be  laid 
upon  the  existence  of  circumstances  supposed  to  be  indicative   of 
motives ;  nor  ought  it  in  any  case  to  supersede  the  necessity  for  the 
same  quantity  of  proof,  as  would  be  deemed  necessary  in  the  ab- 
sence of  all  evidence  of  such  a  stimulus.     Suspicion — too  readily 
excited  by  the  appearance  of  supposed  inducements — is  incompatible 
with  that  even  and  unprejudiced  state  of  mind,  which  is  indispensa- 
ble to  the  formation  of  correct  and  sober  judgment.     While  true  it 
is,  that  "  imputation  and  strong  circumstances  ....  load  directly  to 
the  door  of  truth,"  it  must  also  be  borne  in  mind,  that 

"  Trifles,  light  as  air, 
Are,  to  the  jealous,  confirmation  strong 
As  proofs  of  holy  writ." 

To  penetrate  the  mind  of  man,  is  totally  out  of  human  power ;  and 


30  MOTIVES  TO   CRIME. 

circumstances  which  apparently  present  powerful  motives,  may  never 
have  operated  as  such.  Who  can  say,  that  some  "  uncleanly  ap- 
prehensions,"— some  transient  thoughts  of  sinister  aspect, — in  the 
dimness  of  moral  light  momentarily  mistaken  for  good,  may  not  un- 
bidden float  across  the  purest  mind  ?  And  how  often  is  it  that  man 
has  no  control  over  circumstances  of  apparent  omnipotence  over  his 
motives  !  But  notwithstanding  these  qualifying  considerations,  it  is 
proper  that  in  investigations  grounded  upon  circumstantial  evidence, 
no  fact  should  be  overlooked  ;  since  it  is  impossible  to  predicate 
what  may  be  its  ultimate  relevancy  or  effect  when  combined  with 
other  facts. 

It  must  not  be  expected,  that  motives  shall  be  discovcr- 
.[  *40  ]  ed,  which,  tried  by  the  strict  rules  of  morality,  tIU  *bo 
regarded  as  adequate.  It  is  of  the  essence  of  moral  weak- 
ness, that  it  forms  a  mistaken  estimate  of  present  advantage  ;  and  a 
want  of  correspondence  and  proportion  will  therefore  of  necessity 
be  found  between  the  objects  of  desire  and  the  means  employed  to 
obtain  them.  The  assassin's  dagger  may  be  put  in  requisition  for  a 
few  pieces  of  gold  ;  and  the  difference  between  that  and  other  in- 
ducements to  crime,  is  a  difference  only  of  degree. 

But  the  moral  anatomist  has  to  encounter  other  difficulties,  in  en- 
deavouring to  trace  the  connection  between  actions  and  their  impell- 
ing motives.  Few  men  will  voluntarily  expose  themselves  to  the 
reprobation  of  their  fellow  men  by  avowed  contempt  of  the  obliga- 
tions of  truth  and  duty.  The  desire  of  the  approbation  of  others 
has  a  powerful  and  often  an  auspicious  influence  upon  the  charac- 
ter ;  but  its  operation  is  unfavourable,  and  even  dangerous,  when- 
ever it  becomes  the  leading  motive  of  conduct.*  Hence  the  human 
mind  is  subject  to  the  influence  of  antagonist  principles,  and  men 
frequently  put  on  the  semblance  of  characteristics  of  which  they  are 
entirely  destitute  ;  the  natural  inclination  to  truth  being  destroyed  by 
overpowering  inducements  to  dissimulation. 

It  follows  from  the  preceding  remarks,  that  evidence  of  collateral 
facts  which  appear  to  present  a  motive  for  a  particular  act  of  crimin- 
ality, deserve  in  themselves  no  great  weight ;  and  perhaps  they  are, 
in  general,  important,  only  as  they  operate  to  counterpoise  the  ante- 
cedent improbability,  that  the  party  would  have  committed  the  act 
in  question.  It  must  ever  be  remembered,  that  with  motives  merely, 
the  legislator  and  the  magistrate  have  nothing  to  do ;    and  that  ac- 

*  Stewart's  Philosophy  of  the  Active  and  Moral  Powers  of  Man,  vol.  i,  ch.  7.  sect. 
1.    Bentham's  Jud.  Ev.  vol-  i.  bk.  1.  ch.  6, 


MOTIVES  TO   CRIME.  31 

TioNS  and  external  pacts  as  the  ends  or  objects  op  motives, 
are  the  only  legitimately  cognizable  subjects  of  human 
tribunals.  Actus  non  faeit  *reum  nisi  mens  sit  rea,  is  a  [  *41  ] 
rule  of  reason  and  justice  not  less  than  of  positive  law.* 
Motives  and  their  objects  dijQfer,  it  has  been  remarked,  as  the  spring 
and  wheels  of  a  watch  differ  from  the  pointing  of  the  hour,  being 
mutually  related  in  hke  manner,  f  But  when  the  moral  spring  is 
once  put  in  motion,  then,  even  a  gesture  or  a  look  may  be  the  source 
of  encouragement  and  impulse  to  the  deadliest  crimes,  and  subject 
the  moral  actor  even  to  the  highest  legal  penalty. 

On  the  other  hand,  as  an  action  without  a  motive  would  be  an  ef- 
fect without  a  cause,  and  as  the  particulars  of  external  situation  and 
conduct  will  in  general  correctly  denote  the  motive  for  a  criminal 
action,  the  absence  of  all  evidence  of  an  inducing  cause  is  reasonably 
regarded,  where  the  fact  is  doubtful,  as  affording  a  strong  presump- 
tion of  innocence. 

It  occasionally  happens,  that  an  action  may  be  equally  well  ac- 
counted for  by  diffeVent  motives  of  various  degrees  of  malignity. 
Thus  in  the  case  of  death  occasioned  by  poison,  it  may  have  been 
administered  with  intention  to  kill,  or  with  the  intention  of  producing 
some  other  specific  but  less  dangerous  consequence. $  A  wound 
may  have  been  malignantly  inflicted,  either  with  the  intention  of 
killing,  or  of  doing  some  injury  short  of  death.  Possession  of  the 
fruits  of  crime  may  afford  a  presumption  that  the  party  with  whom 
they  are  found,  is  the  thief,  or  that  he  has  received  them  with  a 
guilty  knowledge  of  the  theft;  or  even  that  he  has  committed  some 
more  aggravated  crime.  One  of  several  companions  in  guilt  may 
have  proceeded  to  an  extremity,  not  originally  contemplated  even  by 
himself  and  not  concurred  in  by  the  others,  as  in  the  case 
of  murder  *committed  to  prevent  resistance  or  discovery.  [  *42  ] 
In  these  and  similar  cases,  it  is  impossible  perhaps  to  assign 
with  certainty  the  specific  motive  which  led  to  the  act,  and  it  can 
be  judged  of  only  by  the  attendant  circumstances  ;  but  social  secu- 
rity and  substantial  justice  require  that  every  man  shall  be  held  ac- 
countable for  the  natural  and  probable  consequences  of  his  actions,§ 
and  no  one  can  be  permitted  to  speculate  with  impunity  upon  the 
precise  extent  to  which  he  can  securely  carry  his  mischievous  inten- 

*  3  Inst.  107. 

t  Hampden's  Lectures,  ut  supra,  p.  214. 

i  Seo  the  case  of  an  Armenian  lady.  Memoirs  of  Sir  James  Mackintosh,  ii.  112. 

§  Rex  V.  Farrington,  R,  and  R.  p.  207.    Rex  v.  Harvey,  2  B,  and  C.  257. 


32  MOTIVES   TO   CKIME. 

tions,  or  to  allege  the  agency  of  less  guilty  motives  and  wishes,  the 
reality  and  degree  of  which  it  is  alike  impossible  to  ascertain.  It  is 
a  sound  legal  maxim,  that  in  criminalibus  sufficit  generalis  malitia 
intentionis,  cum  facto  2)aris  gradus*  "All  crimes,"  says  Bacon, 
"have  their  conception  in  a  corrupt  intent,  and  have  their  consum- 
mation and  issuing  in  some  particular  fact ;  which,  though  it  be  not 
the  fact,  at  the  which  the  intention  of  the  malefactor  levelled,  yet 
the  law  giveth  him  no  advantage  of  the  error,  if  another  particular 
ensue,  of  as  high  a  nature.  Therefore,  if  an  impoisoned  apple  bo 
laid  in  a  place  to  impoison  J.  S.,  and  J.  D.  cometh  by  chance  and 
eateth  of  it,  this  is  murder  in  the  principal  that  is  actor,  and  yet  the 
malice  in  individuo,  was  not  against  J.  D.f"  But  the  operation  of 
this  rule  has  been  carried  beyond  all  reasonable  limits,  as  in  the  case 
of  Arundel  Coke  and  John  Woodburne,  tried  at  the  Suffolk  spring 
assizes,  1722,  for  lying  in  wait,  and  slitting  the  nose  of  Mr.  Crisp, 
the  brother-in-law  of  Coke  (an  offence  made  capital  by  the  stat.  22 
and  23  Car.  II.  c.  1.;)  it  was  ineffectually  urged  that  the  intention 
was  to  murder,  in  order  to  obtain  an  estate,  and  not  to  maim  or  dis- 
figure ;  a  defence  which,  had  it  been  successful,  would  have  reduced 
the  crime  to  a  misdemeanor.  J  The  motive  alleged  was  of 
[  *43  ]  a  *more  aggravated  kind  than  that  which  constituted  the 
technical  offence  ;  but  the  act  itself,  legally  speaking,  was 
certainly  not  of  the  same  degree  as  the  crime  of  murder.  "  In 
capital  cases,"  declares  the  same  high  authority,  "  infavorum  vltce 
the  law  will  not  punish  in  so  high  a  degree,  except  the  malice  of  the 
will  and  intention  appear"  ;§  and  this  case  seems  inconsistent  ahke 
with  the  general  principles  of  criminal  jurisprudence  and  with  other 
decided  cases.  || 

Courts  of  justice,  of  necessity,  interpret  by  external  indications, 
the  secret  workings  of  the  mind :  but  as  such  conclusions  must  in 
general  be  inferential  merely,  they  can  never  be  properly  made  the 
subject  of  testimonial  opinion.^  Whenever  motives  are  suggested 
as  arising  out  of  external  circumstances,  it  is  required  that  such  cir- 
cumstances shall  be  distinctly  proved.     Except  in  questions  of  sci- 

♦  Bacon's  Maxims,  Reg.  xv.  t  Ibid. 

i  16  St.  Tr.  54.  §  Bacon's  Maxims,  Reg.  -vii. 

4  Campbell's  Lives  of  the  Lord  Chancellors,  iv.  601,  Rex  v.  Bell,  Foster's  Crown 
L,  App,  Rex  V.  Carroll,  2  East's  P.  C.  400.    Rex  v,  Duffin,  R.  and  R.  p.  365. 

IT  A  serious  violation  of  this  rule  occurred  in  the  case  of  Mary  Blandy,  tried  in 
1762,  for  the  murder  of  her  father,  when  a  physician  was  allowed  to  state  his  opin- 
ion, that  the  agitation  which  the  prisoner  had  evinced,  proceeded  from  no  concern  for 
her  parent,  but  from  the  apprehension  of  consequences  to  herself.    (18  St.  Tr.  1117. ) 


MOTIVES   TO   CRIME.  33 

ence,  witnesses  are  permitted  to  depose  only  to  facts  ;  it  is  the  pro- 
vince of  the  jury  alone,  to  determine  as  well  whether  those  facts  lead 
to  any  inference  as  to  actuating  motives,  as  also  the  particular  char- 
acter of  any  such  conclusion. 

In  general,  when  an  unlawful  act  has  been  voluntarily  committed, 
the  motive  and  intention,  though  essential  elements  of  criminality, 
are  rightly  matters  of  legal  inference  and  presumption  animus  ex 
qualitatefacti  ijrmsumitur*  In  the  vast  majority  of  cases,  the  na- 
ture of  the  action  is  per  se  unequivocally  indicative  of  guilty  inten- 
tion, and  is  *not  susceptible  of  two  interpretations  ;  res  ipsa 
hi  se  dolum  habet  is  the  language  of  the  old  juridical  wri-  [  *44  ] 
ters.  When  the  act  is  of  such  a  nature  as  not  necessarily  » 
to  imply  a  guilty  intention,  and  the  knowledge  of  the  party  of  the 
nature  of  his  conduct  is  the  specific  point  at  issue,  then  the  evidence 
of  collateral  circumstances  is  of  the  highest  importance,  as  explana-, 
tory  of  his  intentions,  and  may  be  of  vital  moment.  Thus  where, 
upon  a  charge  of  maliciously  shooting,  it  was  questionable  whether 
the  act  proceeded  from  accident  or  design,  proof  was  admitted  that 
the  prisoner  had  intentionally  shot  at  the  same  person  about  a  quar- 
ter of  an  hour  before. f  So,  upon  the  trial  of  a  man  for  the  murder 
of  a  woman,  by  administering  to  her  prussic  acid  in  porter,  evidence 
was  admitted  that  the  deceased  had  been  taken  ill  several  months 
before,  after  partaking  of  porter  with  the  prisoner  ;  Mr.  Baron  Parke 
said,  that  although  this  was  no  direct  proof  of  an  attempt  to  poison, 
the  evidence  was  nevertheless  admissible,  because  anything  tending 
to  show  antipathy  in  the  party  accused  against  the  deceased  was  ad- 
missiblej.  In  like  manner  upon  a  charge  of  uttering  forged  notes, 
the  forged  notes  of  a  different  bank  found  on  the  prisoner's  person, 
were  allowed  to  be  given  in  evidence  to  show  guilty  knowledge  ;§ 
and  upon  an  indictment  for  uttering  a  forged  Bank  of  England  note, 
evidence  was  admitted  that  other  notes  of  the  same  fabrication  had 
been  found  on  the  files  of  the  Bank  with  the  prisoner's  handwriting 
on  the  back  of  them.  ||  In  short,  all  such  relevant  acts  of  the  party 
as  may  reasonably  be  considered  explanatory  of  his  motives,  are 
clearly  admissible  in  evidence. 

*  Moscardus  de  Prob.  toI.  i.  Concl.  xcv. 

t  Rex  I'.  Voke,  R.  and  R.  p.  653. 

}  Reg.  V.  Tawell,  post. 

§  Rex  V.  Sunderland,  1  Lewin,  102.  Rex  v.  Hodgson,  ib.  p.  103.  Rex  v.  Kirk- 
wood,  ib.  p.  103.  Rex  V.  Martin,  ib.  p.  104.  Rex  v.  Hull.  Rex  v.  Millward,  R.  and 
R.  p.  246. 

II  Rex  V.  Ball,  1  Campb.  324,  R.  and  R.  p.  132, 

7 


34  DECLARATIONS  OF  INTENTION. 

*It  occasionally  happens  that  actions  of  great  enormity 
[  *45  ]  are  committed,  for  which  it  is  impossible  to  discover  any 
motive.  In  such  cases,  which  are  not  of  frequent  occur- 
rence, upon  principles  of  reason  and  justice  essential  to  common 
security,  tho  actor  is  held  to  be  legally  accountable,  unless  it  be 
clearly  and  indubitably  shown,  that  he  is  incapable  of  distinguish- 
ing the  moral  qualities  and  tendencies  of  his  actions. 


SECTION    2. 
DECLARATIONS   OF   INTENTION. 


It  is  not  uncommon  with  persons  about  to  engage  in  crime,  to 
utter  menaces,  or  to  make  obscure  and  mysterious  allusion,  to  pur- 
.  poses  and  intentions  of  revenge,  or  to  boast  to  others,  whose  stand- 
ard of  moral  conduct  is  the  same  as  their  own,  of  what  they  will  do, 
or  to  give  vent  to  expressions  of  revengeful  purposes,  or  of  malig- 
nant satisfaction  at  the  anticipated  occurrence  of  some  serious  mis- 
chief. Such  declarations  or  allusions  are  of  great  moment,  when 
clearly  connected  by  independent  evidence  with  some  subsequent 
criminal  action.  The  just  eflFect  of  such  language  is  to  show  the  ex- 
istence of  the  disposition,  ,from  which  criminal  actions  proceed,  to 
render  it  less  improbable  that  a  person  proved  to  have  used  it  would 
commit  the  offence  charged,  and  to  explain  the  real  motive  and  char- 
acter of  the  action.  But  proof  of  such  language  cannot  be  consid- 
ered to  dispense  with  the  obligation  of  strict  proof  of  the  criminal 
facts ;  for,  though  malignant  feelings  may  possess  the  mind,  and  lead 
to  intemperate  and  even  criminal  expressions,  they  nevertheless  may 
exercise  but  a  transient  influence,  without  leading  to  action*. 


[*46]  *SECTION3. 

PREPARATIONS  FOR  THE   COMMISSION   OF   CRIME. 

Pre  meditated  crime  must  necessarily  be  preceded  not  only  by 
impelling  motives,  but  by  appropriate  preparations.  Possession  of 
the  instruments  or  means  of  crime,  under  circumstances  of  suspicion 
— as  of  poison,  coining  instruments,  combustible  matters,  picklock 
keys,  dark-lanthorns,  or  other  destructive  or  criminal  weapons,  in- 

•  Bentham'B  Jud,  Et.  vol.  iii.  bk.  5.  ch.  4.  -^^ 


RECENT   POSSESSION   OF   THE   FRUITS   OF   CRIME.  35 

struments,  or  materials,  and  many  other  acts  of  apparent  preparation 
for  crime — are  important  facts  in  the  judicial  investigation  of  im- 
puted crime.  Where  a  man  had  in  his  possession  a  large  quantity 
of  counterfeit  coin  unaccounted  for,  and  there  was  no  evidence  that 
he  was  the  maker,  it  was  held  to  raise  a  presumption  that  he  had  pro- 
cured it  with  intent  to  utter  it*.  But  the  personal  character  for  pro- 
bity, and  the  civil  station  of  the  party,  are  highly  material  in  con- 
nexion with  facts  of  this  kind.  A  medical  man,  for  instance,  in  the 
ordinary  course  of  his  profession  has  legitimate  occasion  for  the  pos- 
session of  poisons,  a  locksmith  for  the  use  of  picklock  keys. 

Facts  of  the  kind  referred  to  become  more  powerful  indications  of 
guilty  purpose,  if  false  reasons  are  assigned  to  account  for  them  ;  as, 
for  instance,  in  the  case  of  possessing  poison,  that  it  was  procured  to 
destroy  vermin,  which  is  the  excuse  commonly  resorted  to  in  such 

cases. 

The  bare  possession  of  the  means  of  crime,  or  other  mere  acts  of 
preparation,  without  more  conclusive  evidence,  are  not  in  themselves 
of  great  weight,  because,  as  hi  the  case  of  the  presumed  existence 
of  motives,  the  intended  guilt  may  not  have  been  consummated ;  and 
until  that  takes  place  there  is  the  locus  penitentice.  But  as  prepara- 
tions must  necessarily  precede  the  commission  of  premedi- 
tated *crime,  some  traces  of  them  may  generally  be  ox-  [  *47  ] 
pected  to  be  discovered ;  and  if  there  be  not  clear  and  de- 
cisive proof  of  guilt,  the  absence  of  any  evidence  of  such  prelimi- 
nary measures  is  a  circumstance  strongly  presumptive  of  innocence. 

In  the  foregoing  remarks  it  is,  of  course,  assumed,  that  the  party 
possessed  the  opportimity  of  committing  the  imputed  act,  without 
which,  neither  the  existence  of  motives,  nor  the  manifestation  of 
criminal  intention  by  threats  or  otherwise,  followed  even  by  prepar- 
ations for  its  commission,  can  be  of  any  weight. 


S  ECTION    4. 

RECENT  POSSESSION   OF  THE   FRUITS   OF    CRIME. 

Since  the  desire  of  dishonest  gain  is  the  impelling  motive  to  theft 
and  robbery,  it  naturally  follows,  that  the  possession  of  the  fruits  of 
crime,  recently  after  it  has  been  committed  affords  a  strong  and  rea- 
sonable ground  for  the  presumption,  that  the  party  in  whose  pos- 
session they  were  found,  was  the  real  offender,  unless  he  can  account 

*  Rex  V,  Fuller,  R.  and  R.  p.  308. 


36  RECENT   POSSESSION    OF   THE   FRUITS    OP   CRUVIE. 

for  such  possession,  in  some  way  consistently  with  his  innocence.* 
The  force  of  this  presumption  has  been  recognized  from  the  earliest 
times  ;t  its  foundation  is  the  obvious  consideration,  that  if  the  pos- 
session has  been  lawfully  acquired,  the  party  would  be  able,  at  least, 
shortly  after  its  acquisition,  to  give  an  account  of  the  manner  in 
which  such  possession  was  obtained,  and  his  unwillingness  or  inability 

to  afford  such  explanation  is  justly  regarded  as  amounting 
[  *48  ]     *fco  strong  self-condemnatory  evidence.     If  the  party  give  a 

reasonable  and  probable  account  of  the  way  in  which  he 
became  possessed  of  the  property,  as  by  stating  the  name  of  the 
person  from  whom  he  obtained  it,  and  such  party  is  known  to  be  a 
real  person,  it  is  then  incumbent  on  the  prosecutor  to  show  that  such 
account  is  false  ;  but,  if  the  account  given  be  unreasonable  or  im- 
probable on  the  face  of  it,  then  the  accused  must  prove  its  truth,  or 
otherwise  he  will  not  be  relieved  from  the  pressure  of  the  general 
rule  of  presumption.  Therefore,  where  a  man  was  indicted  for 
stealing  a  piece  of  wood,  which  was  found  five  days  after  the  theft 
in  his  shop,  and  he  stated  that  he  had  bought  it  from  a  person  whom 
he  named,  and  who  lived  about  two  miles  off,  it  was  held  that  the 
prosecutor  was  bound  to  show  that  the  account  was  false.  $ 

It  is  manifest  that  the  force  of  this  rule  of  presumption  depends 
upon  the  recency  of  the  possession  as  related  to  the  crime,  and  upon 
the  exclusiveness  of  such  possession. 

1.  If  the  interval  of  time  between  the  loss  and  the  finding  be 
considerable,  the  presumption  as  it  affects  the  party  in  possession  of 
the  stolen  property  is  much  weakened, §  and  the  more  especially  so 
if  the  goods  are  of  such  a  nature  as  in  the  ordinary  course  of  things 
frequently  to  change  hands.  From  the  nature  of  the  case  it  is  not 
possible  to  fix  any  precise  period  within  which  the  effect  of  this  rule 
of  presumption  can  be  limited  ;  it  must  depend  not  only  upon  the 
mere  lapse  of  time,  but  upon  the  nature  of  the  property  and  the  con- 
comitant circumstances  of  each  particular  case.  Where  two  pieces 
of  woolen  cloth  in  an  unfinished  state,  consisting  of  about  twenty 
yards  each,  were  found  in  the  possession  of  the  prisoner  two  months 

after  being  missed,  and  still  in  the  same  siate,  it  was  held 
[  *49  ]     that  this  was  a  possession  sufficiently  recent  to  call  'upon 

*  Rex  V.  Burdett,  4  B.  and  Aid.  149.  Anon.  2  C.  and  P.  459.  Burnett  on  the 
C.L.  of  Scotl.p.  555.  Mascardus  De  Prob.  vol.  ii.  Concl.  dcccxxxiv.  Hume's 
Comm.  on  the  C.  L.  of  Scotl.  i.  111.     3  Starkie's  L.  of  Ev.  933.  Best  on  Pres.  p.  44. 

t   Gen.  sliv.  5. 

t  Reg.  V.  Smith,  2  C.  and  K.  307,    , 

§   Rex  r.  Cockin,  2  Lewin,  235. 


RECENT   POSSESSION   OF   THE   FRUITS    OF    CRIME.  37 

him  to  show  how  he  came  by  the  property.*  In  another  case 
Mr.  Justice  Bayley  directed  an  acquittal,  because  the  only  evidence 
against  the  prisoner  was  that  the  goods  were  not  found  in  his  pos- 
session until  after  a  lapse  of  sixteen  months  after  the  loss.f  And 
where  a  shovel  which  had  been  stolen  was  found  six  months  after  the 
theft  in  the  house  of  the  prisoner,  who  was  not  then  at  home,  Mr. 
Baron  Gurney  held  that  on  this  evidence  alone  the  prisoner  ought 
not  to  be  called  upon  for  his  defence. |  Where  the  only  evidence 
against  a  prisoner,  charged  with  the  larceny  of  a  saw  and  mattock, 
was  that  the  stolen  articles  were  found  in  his  possession  three  months 
after  they  were  missed,  it  was  held  that  this  was  not  such  a  recent 
possession  as  per  se  to  put  him  upon  showing  how  he  came  by  them  ;§ 
but  where  the  evidence  against  the  prisoner  was,  that  three  sheets 
were  found  upon  his  bed  in  his  house  three  months  after  they  had 
been  stolen,  Mr.  Justice  Wightman  held  that  the  case  must  go  to 
the  jury,  on  the  ground  that  it  was  impossible  to  lay  down  any  rule 
as  to  the  precise  time  which  was  too  great  to  call  upon  the  prisoner 
to  account  for  the  possession.  ||  And  where  seventy  sheep  were  put 
upon  a  common  on  the  18th  of  June,  but  not  missed  until  November, 
and  the  prisoner  was  proved  to  have  had  possession  of  four  of  them 
in  October  and  of  nineteen  more  on  the  23rd  of  November,  the  judge 
allowed  evidence  of  the  possession  of  both  to  be  given.^ 

2.  It  is  obviously  essential  to  the  just  application  of  this  rule  of 
presumption,  that  the  house  or  other  place  in  which  the 
stolen  property  is  found  be  in  the  exclusive  *possession  of  [  *50  ] 
the  prisoner.  Where  it  is  found  in  the  apartments  of  a 
lodger,  for  instance,  the  presumption  may  be  stronger  or  weaker, 
according  as  the  evidence  does  or  does  not  show  an  exclusive  pos- 
session. The  possession  of  the  wife  has  been  held,  under  the  cir- 
cumstances, to  be  the  possession  of  the  husband.  A  constable  went 
with  a  warrant  to  search  the  prisoner's  premises  for  stolen  iron,  and 
almost  immediately  after  the  prisoner  was  taken  away  from  the  pre- 
mises at  the  conclusion  of  the  search,  his  wife  carried  some  tin  under 
her  cloak  from  a  warehouse  on  the  premises.  Mr.  Justice  Coleridge 
on  the  trial  of  the  prisoner  for  receiving  stolen  brass  and  tin,  held 

*  Rexv.  Partridge,  7  C.  and  P.  551. 
t  Anon.    7  Monthly  Law  Mag.  58. 
t  Rex  V.  Crnttenden,  Best  on  Pres.  p.  306.    6  Jurist,  267. 
§  Rex  V.  Adams,  3  C.  and  P,  600, 
U  Rex  V.  Dewlett,  2  Ra?sell  on  Crimes,  by  Greaves,  728. 
•V  Rex  V.  Dewhirst,  2  Stark.  614, 


38  RECENT   POSSESSION   OF   THE   FRUITS    OF   CRIME. 

that  it  was  for  the  jarj  to  consider  whetlier  her  possession  was  not 
the  prisoner's,  she  being  upon  the  premises  and  all  the  circumstan- 
ces being  taken  into  consideration,  and  that  it  was  not  like  the  case 
where  the  wife  is  in  possession  of  stolen  property  at  a  distance  from 
the  premises  of  her  husband.*  And  upon  an  indictment  against 
principal  and  receiver,  where  goods  were  found  on  the  receiver's 
premises,  which  had  been  taken  from  the  prosecutor's  premises,  it 
was  held  to  be  competent  to  the  prosecutor  to  give  evidence  of  the 
finding  of  other  goods  at  the  house  of  the  principal,  notwithstanding 
there  was  no  evidence  to  connect  the  receiver  with  them.f 

The  force  of  this  presumption  is  greatly  increased  if  the  fruits  of 
a  plurality  or  of  a  series  of  thefts  be  found  in  the  prisoner's  posses- 
sion, or  if  the  property  stolen  consist  of  a  multiplicity  of  miscella- 
neous articles,  or  be  of  an  uncommon  kind,  or  from  its  value  or 
other  circumstances  be  inconsistent  Avith  or  unsuited  to  the  station  of 
the  party. 
On  the  trial  of  two  men  at  Aberdeen  autumn  circuit,  1824,  it 

appeared  that  a  carpenter's  workshop  at  Aberdeen  was 
[  *51  ]     broken  open  on  a  particular  night,  and  some  tools  carried 

oif,  and  that  on  the  same  night  the  counting-houses  of 
Messrs.  Davidson  and  of  Messrs.  Catto  and  Co.,  in  different  parts 
of  that  city,  were  broken  into,  and  goods  and  money  to  a  consider- 
able extent  stolen.  The  prisoners  were  met  at  seven  on  the  follow- 
ing morning  in  one  of  the  streets  of  Aberdeen,  at  a  distance  from 
either  of  the  places  of  depredation,  by  two  of  the  police.  Upon 
seeing  the  oflBcers  they  began  to  run  ;  and  being  pursued  and  taken, 
there  was  found  in  the  possession  of  each  a  considerable  quantity  of  the 
articles  taken  from  Catto  and  Co.,  but  none  of  the  things  taken  from 
the  carpenter's  shop  or  Davidson's.  But  in  Catto  and  Co.'s  warehouse 
were  found  a  brown  coat  and  other  articles  got  from  Davidson's,  and 
which  had  not  been  there  the  preceding  evening  when  the  shop  was 
locked  up  ;  and  in  Davidson's  were  found  the  tools  which  had  been 
abstracted  from  the  carpenter's.  Thus,  the  recent  possession  of  the 
articles  stolen  from  Catto  and  Co.'s  proved  that  the  prisoners  were 
the  depredators  in  that  warehouse  ;  while  the  fact  of  the  articles 
taken  from  Davidson's  having  been  left  there,  connected  them  with 
that  prior  housebreaking  ;  while,  again,  the  chisels  belonging  to  the 

*  Eeg.v.  Mansfield,  1  Carr.  and  JVIelsh.  142. 

t  Reg.  I'.  Hialey,  York  Winter  Ass.  1843.  2  Law  Times,  287. 


RECENT   POSSESSION   OF   THE   FRUITS   OF    v^iviMii.  39 

carpenter's  shop,  found  in  Davidson's,  identified  the  persona  who 

broke  into  that  last  house  with  those  who  committed  the  original 

theft  at  the  carpenter's.     The  prisoners  were  convicted  of  all  the 

thefts.' 

A  still  stronger  case  of  the  same  kind  occurred  at  Aberdeen  in 

April,  1826,  on  the  trial  of  a  man,  who  was  accused  of  no  fewer  than 
nine  different  acts  of  theft  by  housebreaking,  committed  in  and 
around  Aberdeen  at  various  times  during  the  summer  of  1825  and 
the  following  winter.  No  suspicion  had  been  awakened  against  the 
prisoner,  who  was  a  carter,  living  an  industrious  and  apparently  re- 
gular life,  until  one  occasion,  when  some  of  the  stolen  articles 
'having  been  detected  in  a  broker's  shop,  and  traced  to  his  [  *52  ] 
custody,  a  search  was  made,  and  some  articles  from  all  the 
houses  broken  open  found  amongst  an  immense  mass  of  other  goods, 
evidently  stolen,  in  a  large  chest,  and  concealed  about  various  parts 
of  the  prisoner's  house.  Their  number  and  variety,  and  the  place 
where  they  were  found  were  quite  sufficient  to  convict  him  of  re- 
ceiving the  stolen  property ;  but  as  they  were  discovered  at  the  dis- 
tance of  many  months  from  the  times  when  the  various  thefts  had 
been  committed,  the  difficulty  was  how  to  connect  him  with  the  actu- 
al theft.  The] charges  selected  for  trial^were  five  in  number,  and  as 
nearly  connected  with  each  other  in  point  of  time  as  possible.  In 
none  of  them  was  the  prisoner  identified  as  the  person  who  had  bro- 
ken into  the  houses,  although  the  thief  had  been  seen,  and  more 
than  once  fired  at ;  but  in  all  the  first  four  houses  which  had  been 
broken  into  were  discovered  some  of  the  articles  taken  from  the 
others,  and  in  the  prisoner's  custody  were  found  some  articles  taken 
from  them  all,  which  sufficiently  proved  that  all  the  depradations  had 
been  committed  by  one  person ;  and  the  mark  of  an  iron  instrument 
was  found  on  three  of  the  windows  broken,  which  coincided  exactly 
with  a  chisel  left  in  the  last  house.  Two  days  after  the  housebreak- 
ing of  that  house,  an  old  watch,  part  of  the  stolen  property,  was 
shown  by  the  prisoner  to  a  shopkeeper,  to  whom  it  was  soon  after- 
wards sold,  and  by  him  delivered  up  to  the  officers-  Upon  this  evi- 
dence the  prisoner  was  convicted  of  all  the  charges  of  housebreak- 
mg.f 

The  possession  of  stolen  goods  recently ^dJitQv  their  loss,  may  be 
indicative  not  of  the  offence  of  larceny  simply,^but  of  any  more  ag- 

*  Rex  v<  Downie  and  Milne,  Alliion's  Princ.  p.  313  ;  Mascardus,  De  Probat.  vol. 
i.Concl.  Dcccxxxi. 
1"  Rex  V.  Bowman,  Allison's  Princ.  p.  314. 


40  aECENT   POSSESSION   OF   THE   FRUITS   OF   CRIME. 

gravated  crime  which  has  been  connected  with  theft.  Upon  an  in- 
dictment for  arson,  proof  that  property  which  was  in  the  house  at 
the  time  it  was  burnt  was  soon  afterwards  found  in  the 
[  *53  ]  possession  of  the  *prisoner,  was  held  to  raise  a  probable 
presumption  that  he  was  present  and  concerned  in  the  of- 
fence*. 

So  this  particular  fact  of  presumption  is  of  the  highest  importance 
in  cases  of  murder,  where  that  circumstance  forms,  as  it  most  com- 
monly does,  an  element  of  evidencef.  This  special  application  of 
the  rule  in  question  was  very  emphatically  laid  down  by  Mr.  Justice 
Bayley  on  the  trial  of  John  Diggles  at  Lancaster  spring  assizes, 
1826,  for  the  murder  of  two  aged  persons,  Benjamin  Cass  and  his 
wife,  who  added  that  the  presumption  of  guilt  becomes  much  strong- 
er, if  the  party,  in  endeavouring  to  account  for  his  possession  of  the 
property,  gives  a  false  statement.  The  deceased  were  last  seen 
alive  about  ten  in  the  evening  of  the  1st  of  October  1825,  and  were 
found  murdered  about  six  o'clock  on  the  following  morning.  The 
prisoner  was  acquainted  with  the  deceased,  and  had  been  seen  in  the 
vicinity  of  their  cottage  between  four  and  five  o'clock  in  the  after- 
noon of  the  day  on  which  they  were  murdered,  and  he  was  also  seen 
on  the  following  morning  at  ten  o'clock  at  some  distance  proceeding 
in  a  direction  from  the  spot.  On  the  evening  of  Sunday  the  2nd  of 
October,  and  on  the  following  day,  the  ]>risoner  sold  several  articles 
of  wearing  apparel,  proved  to  have  belonged  to  the  old  man,  to  per- 
sons to  whom  he  gave  false  accounts  as  to  the  place  from  whence  he 
had  come.  Upon  his  apprehension  a  few  days  afterwards,  the  pris- 
oner stated  that  he  had  bought  the  articles  in  question  on  the  Sun- 
day. In  the  waistcoat  pocket  the  person  who  purchased  it  from  the 
prisoner  found  a  pair  of  spectacles,  which  were  proved  to  have  be- 
longed to  Cass  ;  as  to  which  the  learned  Judge  observed,  that  "  it 

was  not  very  likely  that  the  old  man  should  have  sold  them, 
[  *54  ]     and  that  such  articles  become,  as  *it  were  part  of  a  man's 

person."     The  prisoner  was  convicted,  and  before  his  exe- 
cution confessed  his  guilt. 

Upon  the  principle  of  this  presumption  a  sudden  and  otherwise 
inexphcable  transition  from  a  state  of  indigence,  and  a  consequent 
change  of  habits,  is  sometimes  a  circumstance  extremely  unfavoura- 
ble to  the  supposition  of  innocence^. 

*  Rexv.  Rickman,  ii.  East's  P.  C.  1035;  and  see  Fuller's  case,  E.  and  R.  p.  308. 
t  Rex  V.  Burdett,  iv.  B.  and  Aid.  122.     Reg  v.  Courvoisier,  post. 
X  Rex  V.  Burdock,  fo*/. 


RECENT   POSSESSION   OF   THE   FRUITS   OF    CRIME.  41 

But  this  rule  of  presumption  must  be  applied  -with  caution  and 
discrimination,  for  the  bare  possession  of  stolen  property,  though  re- 
cent, uncorroborated  by  other  evidence,  is  sometimes  fallacious  and 
dangerous  as  a  criterion  of  guilt.  Sir  Matthew  Hale  lays  it  down, 
that  "  if  a  horse  be  stolen  from  A,  and  the  same  day  B  be  found 
upon  him,  it  is  a  strong  presumption  that  B  stole  him ;  yet,"  adds 
that  excellent  lawyer,  •'  I  do  remember  before  a  learned  and  very 
wary  judge,  in  such  an  instance,  B  was  condemned  and  executed  at 
Oxford  assizes,  and  yet  within  two  assizes  after,  C,  being  apprehend- 
ed for  another  robbery,  and  convicted,  upon  his  judgment  and  exe- 
cution confessed  he  was  the  man  that  stole  the  horse,  and  being 
closely  pursued  desired  B,  a  stranger,  to  walk  his  horse  for  him 
while  he  turned  aside  upon  a  necessary  occasion  and  escaped ;  and, 
B  was  apprehended  with  the  horse  and  died  innocently*."  A  very 
similar  case  occurred  at  the  Surrey  summer  assizes,  1827,  where  a 
young  man  was  convicted  of  stealing  two  oxen.  The  prisoner,  hav- 
ing finished  his  apprenticeship  to  a  butcher  at  Monk  Wearmouth, 
went  to  visit  an  uncle  at  Portsmouth,  from  whence  he  set  out  to  re- 
turn to  London.  On  the  road  from  Guildford  to  London,  about 
three  o'clock  in  the  morning,  he  overtook  a  man  riding  upon  a  pony 
and  driving  two  oxen ;  who  finding  that  he  was  going  to  London, 
offered  him  five  shillings  to  drive  them  for  him  to  London,  which  he 
agreed  to  do,  the  man  engaging  to  meet  him  at  Westmin- 
ster Bridge.  At  Wandsworth  the  prisoner  *was  appro-  [  *o5  ] 
bended  by  the  prosecutor's  son,  and  charged  with  stealing 
the  oxen.  On  his  apprehension  he  assumed  a  false  name,  under 
which  he  was  tried,  to  conceal  his  situation  from  his  friends.  The 
prisoner  was  convicted,  but  on  a  representation  of  the  circumstances 
he  received  a  pardon,  when  on  the  point  of  being  transported  for 
lifef  :  he  had  been  the  dupe  of  the  real  thief,  who,  finding  himself 
pursued,  had  thus  contrived  to  rid  himself  of  the  possession  of  the 
cattle. 

The  recent  possession  of  stolen  property  may  sometimes  be  refer- 
rible  not  to  the  crime  of  theft,  but  to  that  of  having  received  it  with 
a  guilty  knowledge  of  its  having  been  stolen.  Four  persons  were 
found  guilty  of  housebreaking  on  proof  of  the  recent  possession  of 
the  goods  ;  but  it  was  afterwards  ascertained  that  one  of  them,  who 
had  long  been  known  as  a  receiver  of  stolen  goods,  knew  nothing  of 

♦  ii.  Hale's  P.  C.  ch.  39. 
t  Rex  V.  Gill,  Sessions  Papers  and  A.  R.  1827. 
8 


42  RECENT   POSSESSION   OF   THE   FRUITS   OF    CRIME. 

the  robbery  until  after  it  had  been  committed,  and  had  purchased 
the  goods  from  the  real  thieves  the  day  after  the  robbery.  He  very 
narrowly  escaped  execution*.  There  must  always  be  some  chance 
of  such  mistake,  especially  if  the  goods  are  traced  ex  intervallo  ;  but 
persons  who  thus  connect  themselves  with  crime  have  little  title  to 
sympathy,  when  they  incur  no  greater  amount  of  punishment  than 
the  law  attaches  to  their  actual  offence  ;  and  it  has  been  suggested, 
as  an  amendment  of  the  law,  that  counts  for  receiving  should  be  al- 
lowed to  be  joined  with  counts  for  larcenyf. 

The  rule  under  discussion  is  occasionally  attended  with  uncertainty 
in  its  application,  from  the  difficulty  attendant  upon  the  positive  iden- 
tification of  articles  of  property  alleged  to  have  been  stolen ;  and  it 
clearly  ought  never  to  be  applied,  where  there  is  reasonable  ground 

to  conclude  *that  the  witnesses  may  be  mistaken,  or  where 
[  *56  ]     from  any  other  cause  identity  is  not  satisfactorily  established. 

But  the  rule  is  nevertheless  fairly  and  properly  applied  in 
peculiar  circumstances,  where,  though  positive  identification  is  im 
possible,  the  possession  of  the  property  cannot  without  violence  to 
every  reasonable  hypothesis  but  be  considered  of  a  guilty  character  ; 
as  in  the  case  of  persons  employed  in  carrying  sugar  and  other  arti- 
cles from  ships  and  wharfs.  Cases  have  frequently  occurred  of  con- 
victions of  larceny,  in  such  circumstances,  upon  evidence  that  the 
parties  were  detected  with  property  of  the  same  kind  upon  them  re- 
cently after  coming  from  such  places,  although  the  identity  of  the 
property  as  belonging  to  any  particular  person  could  no  otherwise  be 
proved.  $  On  this  principle  two  men  were  convicted  of  larceny  upon 
evidence  that  the  prosecutor's  soap  manufactory,  near  Glasgow,  had 
been  broken  into  in  the  night  and  robbed  of  about  120  lbs.  of  yel- 
low soap,  and  that  the  prisoners  were  met  on  the  same  night,  about 
eleven  o'clock,  by  the  watchman  near  the  center  of  the  city,  from 
whom  they  attempted  to  escape,  one  bearing  on  his  back  40  lbs.  of 
soap  of  the  same  size,  shape  and  make  as  that  stolen  from  the  pros- 
ecutor's premises,  and  the  other  with  his  clothes  soiled  over  with  the 
same  substance,  though  the  property  could  not  be  more  distinctly 
identified.§  It  is  seldom  however  that  juries  are  required  to  deter- 
mine upon  the  effect  of  evidence  of  the  mere  recent  possession  of 

*  Rex  V.  EUia,  Sessions  Papers  and  A.  R,  1831. 

t  Best  onPres.  p.  304. 

X  ii.  East's  P.  C.  1035. 

§  Rex  V.  McKechnie  and  Tolmie,  Allison's  Princ.  p.  322. 


UNEXPLAINED    APPEARANCES    OF   SUSPICION.  43 

stolen  property;  from  the  very  nature  of  the  case,  the  fact  is  gen- 
erally accompanied  by  other  corroborative  or  explanatory  circumstan- 
ces of  presumption.  If  the  party  have  secreted  the  property, — if 
he  deny  that  it  is  in  his  possession,  and  such  denial  is  discovered  to 
be  false, — if  he  cannot  show  hovr  he  became  possessed  of  ic, — if  he 
give  false,  incredible,  or  inconsistent  accounts  *of  tlio  man- 
ner in  which  he  acquired  it,  as  that  he  had  found  it,  or  [  *o7  ] 
that  it  had  been  given  or  sold  to  him  by  a  stranger  or  left 
at  his  house, — if  he  has  disposed  of  or  attempted  to  dispose  of  it,  at 
an  unreasonably  low  price, — if  he  has  absconded  or  endeavored  to 
escape  from  justice, — if  other  stolen  property,  or  picklock  keys,  or 
other  instruments  of  crime  be  found  in  his  possession, — if  he  were 
seen  near  the  spot  at  or  about  the  time  when  the  act  was  committed, 
— or  if  any  article  belonging  to  him  be  found  at  the  place  or  in  the 
locality  where'  the  theft  was  committed,  at  or  about  the  time  of  the 
commission  of  the  offence, — if  the  impressions  of  his  shoes  or  other 
articles  of  apparel  correspond  with  marks  left  by  the  thieves, — if  he 
has  attempted  to  obliterate  from  the  articles  in  question  marks  of 
identity,  or  to  tamper  with  the  parties  or  the  officers  of  justice, — 
these  and  all  like  circumstances  are  justly  considered  as  throwing 
light  upon  and  explaining  the  fact  of  possession,  and  render  it  mor- 
ally certain  that  such  possession  can  be  referrible  only  to  a  criminal 
origin,  and  cannot  otherwise  be  rationally  accounted  for. 

<  ■»»»  > 


SECTION    5. 


UNEXPLAINED    APPEARANCES   OF   SUSPICION,    AND    ATTEMPTS   TO   AC- 
COUNT FOR  THEM  BY  FALSE  REPRESENTATIONS. 

As  a  general  rule,  to  which  the  exceptions  can  be  but  rare,  it  is  a 
reasonable  conclusion,  that  an  innocent  party  can  explain  suspicions 
or  unusual  appearances,  connected  with  his  person,  dress,  or  con- 
duct ;  and  that  the  desire  of  self-preservation,  if  not  a  regard  for 
truth,  will  prompt  him  to  do  so.  The  ingenuous  and  satisfactory  ex- 
planation of  circumstances  of  apparent  suspicion,  always  operates 
powerfully  in  favor  of  the  accused,  and  obtains  for  him  more  ready 
credence  when  the  explanation  may  not  be  'so  easily  *ver- 
ified.  On  the  other  hand,  the  force  of  suspicious  circum-  [  *58  ] 
stances  is  augmented,  whenever  the  party  attempts  no  ex- 


44  UNEXPLAINED   APPEARANCES   OF   SUSPICION. 

planation  of  facts  which  he  may  reasonably  be  presumed  to  be  able 
and  interested  to  explain. 

An  old  man  on  his  way  home  from  Halifax  market,  where  he 
had  staid  late,  was  attacked,  thrown  down  and  robbed  by  three  men, 
one  of  whom  he  wounded  in  the  struggle  with  a  clasp  knife.  Upon 
the  apprehension  of  one  of  the  robbers  at  the  house  of  his  mother? 
he  was  dressed  in  a  new  pair  of  trowsers,  and  the  constable  found  in 
a  room  upstairs,  between  the  bed  and  the  mattress,  a  pair  of  trowsers 
with  two  long  cuts  in  one  thigh,  one  of  which  had  penetrated  through 
the  lining,  and  was  stained  with  blood  at  that  spot ;  and  the  holes 
had  been  sewed  with  thread  which  was  not  discoloured,  showing  that 
the  blood  must  have  been  applied  to  the  cloth  previous  to  the  repair, 
and  a  corresponding  cut  bound  over  with  plaisters  was  found  on  the 
prisoner's  thigh.  The  prisoner  refused  to  give  any  explanation  of 
the  wound  or  of  the  cuts  in  the  garments,  and  he  was  convicted  and 
transported*. 

But  circumstances  of  suspicion  merely,  without  more  conclusive 
evidence,  are  not  sufficient  to  justify  conviction.  Two  women  were 
indicted  for  colouring  a  shiUing  and  a  sixpence,  and  a  man  as  coun- 
selling them ;  and  the  evidence  against  him  was  thaS  he  visited  the 
women  once  or  twice  a  week,  that  the  rattling  of  copper  money  was 
heard  while  he  was  with  them,  that  once  he. was  counting  something 
just  after  he  came  out,  that  on  going  to  the  room  just  after  the  ap. 
prehension,  he  resisted  being  stopped,  and  jumped  over  a  wall  to  es- 
cape, and  that  there  were  then  found  upon  him  a  bad  three-shilling- 
piece    and  five  bad  sixpences ;    upon  a  case  reserved,  the  judges 

thought  the  evidence  too  slight  to  convict  himf . 
[  *59  ]  *False  or  contradictory  statements,  for  the  purpose  of 
accounting  for  suspicious  circumstances  connected  with 
the  person,  dress,  or  conduct,  when  clearly  disproved,  become  facts 
of  a  still  more  criminatory  effect ;  and  the  allegations  urged  as  rea- 
sons tending  to  defence  and  exculpation  are  not  neutralized  merely, 
but  become  formidable  inculpatory  facts$. 

On  a  late  trial  for  the  murder  of  a  female  by  poison,  but  whom 
the  prisoner  alleged  to  have  died  from  the  eflfects  of  a  draught  wil- 
fully taken  by  her  in  anger  during  an  altercation  between  them,  Mr. 
Baron  Parke  told  the  jury  that  it  was  for  them  to  say  whether  the 
falsehoods  the  prisoner  had  told  did  not  show  that  he  was  conscious 

*  Rex  V.  Dawtrey,  York  Sp.  Assizes,  1841. 
t  Hex  V.  Isaacs,  ii.  Russell',  by  Greaves,  729. 
t  See  Rex  v.  Richardson,  post. 


INDIRECT   CONFESSIONAL   EVIDENCE.  4b 

that  he  had  been  guilty  of  some  act  that  required  concealment ;  that 
it  was  verj  true  he  might  not  wish  it  to  be  known  he  had  been  visit- 
ing a  woman  who,  there  was  good  reason  to  believe,  *had  formerly 
been  his  mistress ;  but  that,  if  he  was  an  innocent  man,  and  had 
been  present  at  the  death,  one  would  have  supposed  he  would  have 
disclosed  it  immediately  and  called  iu  some  assistance.  They  had 
here  two  untruths,  that  he  meant  to  dine  at  the  west  end  of  the 
town  and  did  not ;  and  his  denial  that  he  had  been  out  of  London 
that  evening  ;  these,  he  said,  were  very  material  matters  for  their 
inquiry,  bearing  in  mind  that  upon  the  evidence  there  was  a  very 
ample  case  for  grave  consideration,  to  show  that  the  deceased  died 
of  prussic  acid,  and  that  the  prisoner  was  present  in  the  house  at 
the  moment  of  that  death.  His  Lordship  added,  that  if  the  prison- 
er's representation  had  been  true,  that  the  deceased  had  poisoned 
herself,  one  would  have  supposed  that  he  would  have  taken  the  first 
opportunity,  having  been  present  at  the  time  this  occurred,  of  exone- 
rating himself  from  it,  by  making  this  declaration  to  the  first  person 
he  met ;  one  would  expect,  if  he  had  been  a  man  of  the 
least  cordial  feehng,  he  would  have  *waited  to  see  wheth-  [  *60  ] 
er  it  was  true  or  not  that  she  had  taken  this  poison  and 
called  for  assistance,  instead  of  which,  he  is  proved  to  have  gone  in 
a  short  time  to  London,  and  when  he  got  to  London  he  is  proved  to 
have  denied  altogether  that  he  had  been  there.  You  must  judge, 
said  the  learned  Baron,  of  the  truth  of  the  case  against  a  person  by 
all  his  conduct  taken  together*. 

Allowance  must  nevertheless  be  made  for  the  weakness  of  human 
nature,  and  for  the  difficulties  which  may  attend  the  proof  of  cir- 
cumstances of  exculpation ;  and  care  must  be  taken  that  circum- 
stances are  not  erroneously  assumed  to  be  suspicious  without  suffi- 
cient reasonf. 


<  »«»  > 


SECTION    6. 

INDIRECT   CONFESSIONAL   EVIDENCE. 

Although  the  subject  of  direct  confession  does  not  fall  within  the 
province  of  this  essay,  it  is  necessary  to  advert  to  some  of  the  prin- 


*  Reg.  V.  Tawell,  Aylesbury  Sp-  Assizes,  1S45. 
t  See  Rex  v.  Looker,  and  Rex  v.  Thornton,  post. 


46  INDIRECT    CONFESSIONAL  EVIDENCE. 

cipal  rules,  which  relate  to  that  important  he  ad  of  moral  evidence  ; 
because  thej  are  of  great  moment  in  their  application  to  such  heads 
of  circumstantial  evidence  as  are  only  indirectly  in  the  nature  of 
confessional  evidence. 

A  voluntary  confession  of  guilt,  if  it  be  full,  consistent,  and  pro- 
bable, is  justly  regarded  as  evidence  of  the  highest  and  most  satis- 
factory nature*.  Self-love,  the  mainspring  of  human  conduct,  will 
usually  prevent  a  rational  being  from  making  admissions  prejudicial 
to  his  interest  and  safety,  unless  when  caused  by  the  promptings  of 
truth  and  conscience. 

By  the  law  of  England,  a  voluntary  and  unsuspected 
[  *61  ]  confession  *is  clearly  sufficient  to  warrant  conviction, 
wherever  there  is  independent  proof  of  the  corpus  delicti. 
According  to  some  authorities,  confession  alone  is  a  sufficient  ground 
for  conviction,  even  in  the  absence  of  any  such  independent  evi- 
dence! ;  but  the  contrary  opinion  is  most  in  accordance  with  the 
general  principles  of  reason,  justice,  and  humanity,  the  opinions  of 
the  best  writers  on  criminal  jurisprudence,  and  the  practice  of  other 
enlightened  nations^.  Nor  are  the  cases  adduced  in  support  of  the 
doctrine  in  question  very  decisive,  since  in  all  of  them  there  appears 
to  have  been  some  evidence,  though  slight,  of  confirmatory  circum- 
stances, independently  of  th  e  confes3ion§. 

Judicial  history  presents  innumerable  warnings  of  the  danger  of 
placing  implicit  dependence  upon  this  kind  of  self-condemnatory  evi- 
dence, even  where  it  is  exempt  from  all  suspicion  of  coercion,  phy- 
sical or  moral,  or  other  sinister  influence.  How  greatly  then  must 
such  danger  be  aggravated,  where  confession  constitutes  the  only 
evidence  of  the  fact  of  a  corpus  delicti ;  and  how  incalculably 
greater  in  such  cases  is  the  necessity  for  the  most  rigorous  scrutiny 
of  all  collateral  circumstances,  which  may  actuate  the  party  to  make 
a  false  confession  !  The  agonies  of  torture,  the  dread  of  their  in- 
fliction, the  hope  of  escaping  the  rigours  of  slavery  or  the  hardships 
of  military  service,  a  weariness  of  existence,  self-delusion,  the 
desire    to    shield   a  guilty   relative  or  friend  from    the   penalties 

*  Mascardus  De  Prob.  vol.  iii.  concl.  15,  16.  Rex  v.  "Warrickshall,  Leach's  C.  C. 
i.  299.     Greenleaf,  L.  of  Ev.  vol.  i.  sec.  219. 

t  Best  on  Pres.  p.  330,  and  the  cases  cited. 
-   X  Greenleaf 's  L.  of  Ev.  i.  sec.  217.    Allison's  Princ,  p.  32.5,     Code  Pe'nal  d'Au- 
triche,  Part  i.  sec.  ii.  ch.x.     Gabriel,  ut  supra,  p.  226. 

§  Rex  V.  Fisher,  i.  Leach,  286.  Rex  v.  Eldridge,  R.  and  R.  p.  441.  Eex  v.  Fanlk- 
ner,  i6.  p.  481.  Rex  w.  White,  i6.  p.  508,  Rex  v.  Tippett,  t6.  p.  509.  Greenleaf 's 
L.  of  Ev.  vol.  i.  sec.  217. 


INDIRECT   CONFESSIONAL  EVIDENCE.  47 

of  justice*,  the  impulses  of  despair  from  the  *pressure  of     [  '62  ] 
strong  and  apparently  incontrovertible  presumptions  of 
guilt,  the  dread  of  unmerited   punishment  and  disgrace,  and  the 
hope  of  pardon — these  and  numerous  other  iuducements  not  unfre- 
quently  operate  to  produce  unfounded  confessions  of  guilt. 

Ulpian  relates  the  case  of  a  slave,  who  falsely  accused  himself  of 
a  murder,  in  order  that  he  might  not  return  under  the  dominion  of 
a  cruel  master. 

Innumerable  are  the  instances  on  record  of  confession,  extracted 
"  by  the  deceitful  and  dangerous  experiment  of  die  criminal  ques- 
tion"!, of  offences  which  were  never  committed,  or  not  committed 
by  the  persons  making  confession:|:.  Nor  have  such  instances  been 
•wanting  even  in  the  present  century. 

When  Felton,  upon  his  examination  at  the  Council  Board,  declar- 
eJ,  as  he  had  always  done,  that  no  man  livmg  had  instigated  him  to 
the  murder  of  the  Duke  of  Buckingham,  the  Bishop  of  London  said 
to  him,  "If  you  will  not  confess,  you  must  go  to  the  rack."  The 
man  replied,  "  If  it  must  be  so,  I  know  not  whom  I  may  accuse  in 
the  extremity  of  the  torture, — Bishop  Laud  perhaps,  or  any  lord  at 
this  Board§."  "  Sound  sense,"  observed  the  excellent  Sir  Michael 
Foster,  "in  the  mouth  of  an  enthusiast  and  a  ruffian ||." 

Not  less  repugnant  to  policy,  justice,  and  humanity  is  the  moral 
torture  to  which  in  some  (perhaps  in  most)  of  the  nations  of  Eu- 
rope, persons  suspected  of  crime  are  subjected,  by  means  of  search- 
ing, rigorous  and  insidious  examinations,  conducted  by 
skilful  adepts  in  judicial  tactics,  *and  accompanied  some-  [  *63  ] 
times  even  by  dramatic  circumstances  of  terror  and  inti- 
midation^. 

Lord  Clarendon  gives  a  circumstantial  account  of  the  confession 
of  a  Frenchman  named  Hubert,  after  the  fire  of  London,  that  he 
had  set  the  first  house  on  fire,  and  had  been  hired  in  Paris  a  vear 
before  to  do  it.  "Though,"  says  he,  "the  Lord  Chief -Justice 
told  the  King  that  '  all  his  discourse  was  so  disjointed  he  did  not 

*  j.  Chitty's  Crim.  L.  85 

t   Gibbon's  Decline  and  Fall,  vol.  iii.  ch.  xvii. 

J  Jardine  on  the  Use  of  Torture  in  the  C.  L.  of  England,  pp.  3,  6  ;  aud  sec  For- 
tescue  D.  Laudibus  Legum  Angliae,  ch.  xxii. 

4  Kushworth's  Collections,  i.  638. 

II  Foster's  C.  L.  p.  244.  (third  ed.) 

IT  See  the  case  of  Eiembaur,  a  Bavarian  priest,  charged  with  murder,  in  Narra- 
tives of  Remarkable  Criminal  Trials,  by  Feuerbach,  ut  supra. 


48  INDIRECT   CONFESSIONAL   EVIDENCE. 

believe  him  guilty,'  yet  upon  his  own  confession  the  jury  found  him 
guilty,  and  he  was  executed  accordingly :"  the  historian  adds, 
"  though  no  man  could  imagine  any  reason  why  a  man  should  so 
desperately  throw  away  his  life,  which  he  might  have  saved  though 
he  had  been  guilty,  since  he  was  accused  only  upon  his  own  confes- 
sion, yet  neither  the  judges  nor  any  present  at  the'  trial  did  believe 
him  guilty,  but  that  he  was  a  poor  distracted  wretch,  Aveary  of  life 
and  chose  to  part  with  it  this  way*." 

A  very  remarkable  case  of  this  nature  was  that  of  the  two  Booms, 
convicted  in  the  Supreme  Court  of  Vermont,  in  September  term, 
1819,  of  the  murder  of  Russell  Colvin,  May  10,  1812.  It  appear- 
ed that  Colvin,  who  was  the  brother-in-law  of  the  prisoners,  was  a 
person  of  a  weak  and  not  perfectly  sound  mind  ;  that  he  was  consid- 
ered burdensome  to  the  family  of  the  prisoners,  who  were  obliged  to 
support  him  ;  that  on  the  day  of  his  disappearance,  being  in  a  dis- 
tant field,  where  the  prisoners  were  at  work,  a  violent  quarrel  broke 
out  between  them,  and  that  one  of  them  struck  him  a  violent  blow 
on  the  back  of  the  head,  with  a  club,  which  felled  him  to  the  ground. 
Some  suspicions  arose,  at  that  time,  that  he  was  murdered ;  which 
were  increased  by  the  finding  of  his  hat,  in  the  same 
[  *61  ]  field,  a  few  months  afterwards.  These  suspicious  in  *pro- 
cess  of  time  subsided  ;  but  in  1819,  one  of  the  neighbours 
having  repeatedly  dreamed  of  the  murder,  with  great  minuteness 
of  circumstances,  both  in  regard  to  his  death  and  the  concealment 
of  his  remains,  the  prisoners  were  vehemently  accused,  and  generally 
believed  guilty  of  the  murder.  Upon  strict  search,  the  pocket  knife 
of  Colvin,  and  a  button  of  his  clothes  were  found  in  an  old  open 
cellar  in  the  same  field  ;  and  in  a  hollow  stump  not  many  rods  from 
it,  were  discovered  two  nails  and  a  number  of  bones  believed  to  be 
those  of  a  man.  Upon  this  evidence,  together  with  the  deliberate 
confession  of  the  fiict  of  the  murder  and  concealment  of  the  body 
in  those  places,  they  were  convicted  and  sentenced  to  die.  On  the 
same  day  they  applied  to  the  legislature  for  a  commutation  of  the 
sentence  of  death,  to  that  of  perpetual  imprisonment ;  which  as  to 
one  only  of  them  was  granted.  The  confession  being  now  with- 
drawn and  contradicted,  and  a  reward  offered  for  the  discovery  of 
the  missing  man,  he  was  found  in  New  Jersey,  and  returned  home 
in  time  to  prevent  the  execution.  He  had  fled  for  fear  that  the 
prisoners  would  kill  him.     The  bones  were  those  of  an  animal.     The 

♦  Life  and  Continuation,  &c.,  iii.  94.     (Clarendon,  ed.  1824.) 


INDIRECT   CONFESSIONAL   EVIDENCE.  49 

prisoners  had  been  advised  bj  some  misjudging  friends,  that,  as  they 
would  certainly  be  convicted,  upon  tbe  circumstances  proved,  their 
only  chance  for  life  was  by  a  commutation  of  punishment,  and  that 
this  depended  on  their  making  a  penitential  confession,  and  there- 
upon obtaining  a  recommendation  to  mercy*. 

The  State  Trials  contain  numerous  confessions  of  witchcraft,  and 
abound  with  absurd  and  incredible  details  of  communications  with 
evil  spirits,  which  only  show  that  the  parties  were  impostors,  or  the 
involuntary  victims  of  invincible  self  delusion. 

A  distinguished  foreign  lawyer  well  observes,  that 
"  whilst  such  anomalous  cases  ought  to  render  courts  *and  f  *Q5  ] 
juries  at  all  times  extremely  watchful  of  every  fact  at- 
tendant on  confessions  of  guilt,  the  cases  should  never  be  invoked  or 
so  urged  by  the  accused's  counsel  as  to  invalidate  indiscriminately 
all  confessions  put  to  the  jury,  thus  repudiating  those  salutary  dis- 
tinctions which  the  Court,  in  the  jidicious  exercise  of  its  duty,  shall 
be  enabled  to  make.  Such  an  use  of  these  anomalies,  which  should 
be  regarded  as  mere  exceptions,  and  which  should  speak  only  in  the 
voice  of  warning,  is  no  less  unprofessional  than  impolitic,  and  should 
be  regarded  as  offensive  to  the  intelligence  both  of  the  Court  and 
juryf." 

It  is  essential  to  justice,  that  a  confessional  statement,  if  it  be 
consistent  an>l  probable,  should  be  taken  together,  and  not  distorted, 
or  but  partially  adopted|.  On  the  trial  of  a  man  for  a  murder  com- 
mitted twenty-four  years  before,  the  principal  inculpatory  evidenco 
consisted  of  his  confession,  which  stated  in  substance  that  he  was 
present  at  the  murder,  but  went  to  the  spot  without  any  previous 
knowledge  that  a  murder  was  intended,  and  took  no  part  in  it.  It 
was  urged  that  the  prisoner's  concurrence  must  be  presumed  from 
his  presence  at  the  murder,  but  Mr.  Justice  Littledale  held  that  the 
statement  must  be  taken  as  a  whole  ;  and  that  so  qualified,  it  did 
not  in  fairness  amount  to  an  admission  of  the  guilt  of  murder.§ 
And  where  the  prisoner's  declaration,  in  which  she  asserted  her  in- 
nocence, was  given  in  evidence  against  her,  and  there  was  evidence 
of  other  statements  confessing  guilt,  the  judge  left  the  whole  of  the 
conflicting  statements  to  the  jury  for  their  consideration  ;  but  where 
there  is,  in  the  whole  case,  no  evidence  but  what  is  compatible  with 

*  1  Greenleaf  s  L.  of  Ev,  §  214, 
t  1  Hoffman's  Course  of  Legal  Study,  367. 
J  Gabriel,  ut  supra,  230. 
§  Rex  V.  Clewes.  4  C.  and  P.  221. 
9 


50  INDIRECT   CONFESSIONAL   EVIDENCE. 

the  assertion  of  innocence,   given  in  evidence  for  the  prosecution, 

the  judge  will  direct  an  acquittal*. 
[  *66  ]  *If  a  confessional  statement  be  inconsistent,  incredible, 
or  improbable,  or  be  contradicted  or  discredited  by  other 
evidence,  or  be  the  emanation  of  a  weak,  or  heated,  or  excited  state 
of  mind,  the  jury  may  exercise  their  discretion  in  rejecting  it,  either 
wholly  or  in  part,  whether  the  rejected  part  make  for  or  against  the 
prisoner! . 

On  the  trial  of  a  man  for  feloniously  setting  fire  to  a  stack  of  hay, 
it  appeared  that  between  two  and  three  o'clock  in  the  morning,  a 
police  constable  attracted  by  the  cry  of  fire  went  to  the  spot,  close 
to  which  he  met  the  prisoner ,  who  told  him  that  a  haystack  was  on 
fire,  and  that  he  was  going  to  London  ;  the  policeman  asked  him  to 
give   information  of  the  fire  to  any  policeman  he  might  meet,  and 
request  him  to  come  and  assist.     Shortly  afterwards,  on  his  way  to- 
wards Locdon,  the  prisoner  met  a  Serjeant  of  police  whom  he  inform- 
ed of  the  fire,  stating  that  he  was  the  man  who  set  the  stack  on  fire, 
upon  which  he  was  taken  into  custody.     The  serjeant  of  police,  on 
cross  examination  by  the  prisoner,  stated  that  the  magistrates  enter- 
tained an  opinion  that  he  was  insane,  and  directed  inquiries  to  be 
made,  from  which  it  appeared  that  he  had  before  been  charged  with 
some  offence  and  acquitted  on  the  ground  of  insanity.     When  ap- 
prehended the  prisoner  appeared  under  great  excitement ;  and  upon 
his  trial  he  alleged  that  he  had  been  confined  two  years  in  a  lunatic 
asylum,  and  had  been  liberated  only  about  a  year  ago ;  that  his 
mind  had  been  wandering  for  some  time ;  and  that  passing  by  the 
place  at  the  time  of  the  fire,  he  was  induced,  in  a  moment  of  deliri- 
um, to  make  this  groundless  charge  against  himself.     He  begged 
the  Court  to  explain  to  the  jury  the  different  result  that  would  follow 
from  bis  being  acquitted  on  the  ground  of  insanity  and  an  uncondi- 
tional  acquittal ;  and  said  that  rather  than  the  former 
[  *67  ]     verdict  should  be  returned,  *which  would  probably  have 
the  effect  of  immuring  him  in  a  lunatic  asylum  for  the 
rest  of  his  life,  he  would  retract  his  plea  of  not  guilty,  and  plead 
guilty  to  the  charge.     Mr.  Justice  Williams  in  summing  up  remark- 
ed, that  there  did  not  appear  to  be  the  least  evidence  against  the 
prisoner  except  his  own  statement ;  and  that  it  was  for  the  jury  to 
say  under  all  the  circumstances,  whether  they  believed  that  state- 

*  Rex  V.  Jones,  2  C.  and  P.  629. 

t  Rex  V.  Higgins,  3  C.  and  P.  603.      Rex  v.  Steptoe,  4  C.  and  P.  397.    I  Green- 
leaf's  L.  of  Ev. ^  218. 


INDIRECT   CONFESSIONAL   EVIDENCE.  51 

ment  was  founded  in  fact,  or  whether  it  was,  as  the  prisoner  alleged, 
merely  the  effect  of  an  excited  imagination  and  weak  mind.  The 
prisoner  was  acquitted*. 

It  is  obvious  that  every  caution  observed  in  the  reception  of  evi- 
dence of  a  direct  confession,  ought  to  be  more  especially  applied  in 
the  admission  and  estimation  of  the  analogous  evidence  of  state- 
ments which  are  only  indirectly  in  the  nature  of  confessional  evi- 
dence ;  since  such  statements  from  the  nature  of  the  case  must  be 
ambiguous,  or  relate  but  obscurely  to  the  corpus  delicti. 

"  Hasty  confessions,"  says  Sir  Michael  Foster,  "  made  to  persons 
having  no  authority  to  examine,  are  the  weakest  and  most  suspicious 
of  all  evidence.  Proof  may  be  too  easily  procured,  words  are  often 
misrcported, — whether  through  ignorance,  inattention,  or  malice,  it 
mattereth  not  to  the  defendant,  he  is  equally  affected  in  either  case  ; 
an  1  they  are  extremely  liable  to  misconstruction,  and  withal  this 
evidence  is  not  in  the  ordinary  course  of  things  to  be  disproved  by 
that  sort  of  negative  evidence,  by  which  the  proof  of  plain  facts  may 
be  and  often  is  confronted."! 

Upon  the  trial  of  Richard  Coleman  at  Kingston  spring  assizes, 
1748-49,  for  the  murder  of  a  woman,  who  had  been 
*brutally  assaulted  by  three  men,  and  died  from  the  inju-  [  *68  ] 
ries  she  received,  it  appeared  that  one  of  the  offenders,  at 
the  time  of  the  commission  of  the  outrage,  called  another  of  them 
by  the  name  of  Coleman,  from  Avhich  circumstance  suspicion  attached 
to  the  prisoner.  A  person  deposed  that  he  met  the  prisoner  at  a 
public-house,  and  asked  him  if  he  knew  the  woman  who  had  been  so 
cruelly  treated,  and  that  he  answered  "Yes,  what  of  that  ?"  The 
witness  said  that  he  then  asked  him  if  he  was  not  one  of  the  parties 
concerned  in  that  affair  ;  to  which  he  answered,  according  to  one 
account,  "  Yes  I  was,  and  what  then  ?"  or,  as  another  account 
states,  "  If  I  was,  what  then  ?"  It  appeared  that  the  prisoner  was 
intoxicated,  and  that  the  questions  were  put  with  the  view  of  en- 
snaring him  ;  but,  doubtless  much  influenced  by  this  imprudent  and 
blameable  language,  the  jury  convicted  him,  and  he  was  executed. 
The  real  offenders  were  discovered  about  two  years  afterwards,  and 
two  of  them  were  executed  for  this  very  offence,  and  fully  admitted 

*  Reg  V.  Wilson,  Maidstone  winter  assize,  1844.  The  same  doctrine  was  held  by 
L.  C.  J.  Wilde,  in  a  case  of  arson  at  Maidstone  spring  assizes,  1847,  where  the  pri- 
soner to  conceal  his  disgrace  refused  to  give  his  name. 

t  Foster's  C.  L.  243  ;   and  see  1  Greenlears  L.  of  Ev.  §  214, 


52  INDIRECT   CONFESSIONAL   EVIDENCE. 

their  guilt ;  the  third  having  been  admitted  to  give  evidence  for  the 
Crown,  and  the  innocence  of  Coleman  was  rendered  indubitable.* 

In  the  most  debased  persons  there  is  an  involuntary  tendency  to 
truth  c.nd  consistency,  except  when  the  mind  is  on  its  guard,  and 
studiously  bent  upon  concealment.  This  law  of  our  nature  some- 
times gives  rise  to  evidentiary  facts  of  great .  weight,  and  may  be 
traced  in  minute  and  unpremeditated  acts.  In  the  case  of  Eugene 
Aram,  Avho  was  tried  in  the  year  1759  for  the  murder  of  Daniel 
Clark,  an  apparently  slight  circumstance  in  the  conduct  of  House- 
man, his  accomplice,  led  to  Aram's  conviction  and  execution.  About 
thirteen  years  after  the  time  of  Clark's  being  missing,  a  labourer, 
employed  in  digging  for  stone  to  supply  a  limekiln  near 
[  *69  ]  Knaresborough,  discovered  a  human  *skeleton  near  the 
edge  of  the  cliff.  It  soon  became  suspected  that  the  body 
was  that  of  Clark,  and  the  coroner  held  an  inquest.  Aram  and 
Houseman  were  the  persons  who  had  last  been  seen  with  Clark,  on 
the  very  night  before  he  was  missing.  Houseman  was  summoned  to 
attend  the  inquest,  and  discovered  signs  of  uneasiness :  at  the  re- 
quest of  the  coroner  he  took  up  one  of  the  bones,  and  in  his  confu- 
sion dropped  this  unguarded  expression,  "  This  is  no  more  Daniel 
Clark's  bone  than  it  is  mine  ;"  from  which  it  was  concluded,  that  if 
he  was  so  certain  that  the  bones  before  him  were  not  those  of  Clark, 
he  could  give  some  account  of  him.  He  was  pressed  with  this  ob- 
servation, and,  after  various  evasive  accounts,  he  made  a  full  con- 
fession of  the  crime  ;  and  upon  search,  pursuant  to  his  statement, 
the  skeleton  of  Clark  was  found  in  St.  Robert's  Cave,  buried  pre- 
cisely as  he  had  described  it.f 

A  remaikable  fact  of  the  same  kind  occurred  in  the  case  of  one 
of  three  men  convicted,  in  February  1807,  of  the  murder  of  Mr. 
Steele.  In  consequence  of  disclosures  made  by  an  accomplice,  a 
police-oflScer  apprehended  the  prisoner  about  four  years  after  the 
murder  on  board  the  Shannon  frigate,  in  which  he  was  serving  as  a 
marine.  The  ofl&cer  asked  him  in  the  presence  of  his  captain  where 
he  had  been  about  three  years  before  ;  to  which  he  answered  that 
he  was  employed  in  London  as  a  day-labourer.  He  then  asked  him 
where  he  had  been  employed  that  time  four  years :  the  man  imme- 
diately turned  pale,  and  would  have  fainted  away  had  not  water 

*  I  Remarkable  Trials,  162,  172.  4  Celebrated  Trials,  344,  Rex  v.  Jones  and 
Welch. 

t  The  genuine  account  of  the  life  and  trial  of  Eugene  Aram,  and  Biographia 
Britannica,  article  Eugene  Aram. 


INDIRECT   CONFESSIONAL   EVIDENCE.  53 

been  administered  to  him.  These  marks  of  emotion  derived  their 
weight  from  the  latency  of  the  allusion — no  express  reference  hav- 
ing been  made  to  the  offence  with  which  the  prisoner  was  charged — 
and  from  the  probabiUty  that  there  must  have  been  some  secret  rea- 
son for  his  emotion  connected  with  the  event  so  obscurely 
*referred  to,  particularly  as  he  had  evinced  no  such  feel-  [  *70  ] 
ing  upon  the  first  question,  which  referred  to  a  later  period.* 

To  this  head  may  be  referred  the  acts  of  concealment,  disguise, 
flight,  and  many  other  ex  'post  facto  indications  of  mental  emotion. 
By  the  common  law,  flight  was  considered  so  strong  a  presumption 
of  guilt,  that  in  cases  of  treason  and  felony  it  carried  the  forfeiture 
of  the  party's  goods  whether  he  were  found  guilty  or  acquitted  ;f 
and  the  ofEcer  always,  until  the  abolition  of  the  practice  by  statute, :|: 
called  upon  the  jury  afcer  verdict  to  state  whether  the  party  had 
fled  on  account  of  it.§  These  several  acts  in  all  their  modifications 
are  indications  of  fear  ;  but  it  would  be  harsh  and  unreasonable  in- 
variably to  interpret  them  as  indications  of  moral  consciousness,  and 
greater  weight  has  sometimes  been  attached  to  them  than  they  have 
fairly  warranted.  Doubtless  the  manly  carriage  of  integrity  always 
commands  the  respect  of  mankind,  and  all  tribunals  do  homage  to 
the  great  principles  from  which  consistency  springs  ;  but  it  does  not 
follow  that,  because  the  m:)ral  courage  and  consistency  which  gen- 
erally accompany  the  consciousness  of  uprightness  raise  a  presump- 
tion of  innocence,  the  converse  is  always  true.  Men  are  differently 
constituted  as  respects  both  animal  and  moral  courage,  and  fear  may 
spring  from  causes  very  different  from  that  of  conscious  guilt.  Mr. 
Justice  Abbott,  on  a  trial  for  murder  where  evidence  was  given  of 
flight,  observed  in  his  charge  to  the  jury,  that  "  a  person,  however 
conscious  of  innocence,  might  not  have  courage  to  stand  a  trial ;  but 
might,  although  innocent,  think  it  necessary  to  consult  his  safety  by 
flight."  "  It  may  be,"  added  the  learned  judge,  "  a  conscious  an- 
ticipation of  punishment  for  guilt,  as  the  guilty  will  always 
*anticipate  the  consequences ;  but  at  the  same  time  it  may  [  *71  ] 
possibly  be,  according  to  the  frame  of  mind,  merely  an  in- 
clination to  consult  his  safety  by  flight  rather  than  stand  his  trial  on 
a*charge  so  heinous  and  scandalous  as  this  is."  ||  It  is  not  possible  to 
lay  down  any  express  test  by  which  these   various  indications  may 

*  6  Celebrated  Trials,  19  ;  and  Sessions  Papers,  1807. 

t  Co.  Liu.  375.  t  7  and  8  Geo,  IV.  cap.  §  5. 

§  1  Hale's  P.  C.  ch.  27  and  2  ibid.  ch.  12.    4  Bl.  Coram.  387. 

II  Rex  V.  Donnall,  post. 


54  SUPPRESSION,   DESTRUCTION,   FABRICATION 

be  infallibly  referred  to  any  more  specific  origin  tban  the  operation 
of  fear.  Whether  that  fear  proceeds  from  the  consciousness  of 
guilt,  or  from  the  apprehension  of  undeserved  disgrace  and  punish- 
ment, and  from  deficiency  of  moral  courage,  is  a  question  which  can 
be  judged  of  only  by  reference  to  concomitant  circumstances.  Pre- 
judice is  often  epidemic,  and  there  have  been  periods  and  occasions 
■when  public  indignation  has  been  so  much  and  so  unjustly  aroused 
as  reasonably  to  deter  the  boldest  mind  from  voluntary  submission  to 
the  ordeal  of  a  trial.  The  consciousness  that  appearances  have 
been  suspicious,  even  vrherc  suspicion  has  been  umvarrantable,  has 
sometimes  led  to  acts  of  conduct  apparently  incompatible  with  inno- 
cence, and  drawn  down  the  unmerited  infliction  of  the  highest  legal 
penalty. 

The  inconclusiveness  of  these  circumstances  is  strikingly  exem- 
plified in  the  before-mentioned  case  of  Coleman.*  The  magistrate 
was  so  fully  convinced  of  the  prisoner's  innocence,  that  he  allowed 
him  to  go  at  large  on  bail  to  appear  at  the  assizes.  The  coroner's 
inquest  having  brought  in  a  verdict  of  guilty  against  him,  he  en- 
deavored to  escape  from  the  danger  of  a  trial  in  the  excited  state  of 
public  feeling  by  flight;  but  was  subsequently  apprehended,  and 
convicted,  and  executed  on  a  charge  of  murder,  of  which  he  was 
unquestionably  guiltless.f 

In  the  endeavor  to  discover  truth  no  evidence  should  *be 
[  *72  ]     excluded  ;  but  that  case  must  be  scanty  of  evidence  which 
demands  that  importance  should  be  attached  to  circumstan- 
ces so  fallacious  as  the  acts  in  question. 


SECTION    7. 


THE   SUPPRESSION,   DESTRUCTION,   FABRICATION   AND    SIMULATION  OF 

EVIDENCE. 

It  is  a  maxim  of  law  that  omnia  prcesumuntur  contra  spoliatorem, 
and  the  suppression  or  destruction  of  pertinent  evidence  is  always 
therefore  deemed  a  prejudicial  circumstance  of  great  weight ;  for  as 
no  action  of  a  rational  being  is  performed  without  a  motive,  it  not- 

*  Ante,  p.  68. 

t  See  also  the  case  of  Green  and  others,  14  St.  Tr.  1369,  where  several  persons, 
one  of  whom  had  voluntarily  surrendered,  were  convicted  of  a  groundless  charge  of 
murder  and  piracy. 


AND    SIMULATION   OF   EVIDENCE.  55 

urallj  leads  to  the  inference  that  such  evidence,  if  it  was  produced, 
would  operate  unfavorably  to  the  party  in  whose  power  it  is.* 

A  chimney  sweeper  having  found  a  jewel,  took  it  to  a  jeweller  to 
ascertain  its  value ;  who,  having  removed  it  from  the  socket,  gave 
him  three  halfpence  and  refused  to  return  it.  The  friends  of  the 
finder  encouraged  him  to  bring  an  action  against  the  jeweller  ;  and 
the  Lord  Chief  Justice  Pratt  directed  the  jury,  that  unless  the  de- 
fendant produced  the  jewel,  and  showed  it  not  to  be  of  the  finest 
water,  they  should  presume  the  strongest  against  him  and  make 
the  value  of  the  best  jewels  the  measure  of  their  damages. f 

On  an  ejectment  involving  the  title  to  large  estates  in  Ireland, 
the  question  being  whether  the  plaintifif  was  the  legitimate  son  of 
Lord  Altham,  and  therefore  prior  in  right  to  the  defendant, 
who  was  his  brother,  it  was  proved  *that  the  defendant  [  *73  ] 
had  procured  the  plaintifi",  when  a  boy,  to  be  kidnapped 
and  sent  to  America,  and,  on  his  return,  fifteen  years  afterwards,  on 
occasion  of  an  accidental  homicide,  had  assisted  in  an  unjust  prose- 
cution against  him  for  murder  :  it  was  held  that  these  circumstances 
created  a  violent  presumption  of  the  defendant's  knowledge  of  title 
in  the  plaintiff;  and  the  jury  were  directed  that  the  suppressor  and 
the  destroyer  were  to  be  considered  in  the  same  light  as  the  law  con- 
siders a  spoliator,  as  having  destroyed  the  proper  evidence  ;  that 
against  him,  defective  proof,  so  far  as  he  had  occasioned  such  defect, 
must  be  received,  and  everything  presumed  to  make  it  effectual ; 
and  that  if  they  thought  the  plaintiff  had  given  probable  evidence  of 
his  being  the  legitimate  son  of  Lord  Altham,  the  proof  might  be 
turned  on  the  defendant,  and  they  might  expect  satisfaction  from 
him  that  his  brother  died  without  issue. :|: 

The  foresoinir  illustrations  of  the  rule  of  evidence  under  consid- 
eration,  are  among  the  most  striking  recorded  cases  of  its  applica- 
tion ;  nor  are  they  the  less  pertinent  because  they  arose  in  civil 
cases,  since  the  rules  of  evidence  arc  the  same  in  all  cases,  whether 
civil  or  criminal.  § 

In  the  memorable  case  of  Captain  Donellan,  the  rinsing  of  the 
phials  from  which  Sir  Theodosius  Boughton  had  taken  the  draught 

*   1  Starkie's  L.  of  Ev.  437. 

t  Armorie  v.  Delamire,  1  Strange,  555  ;  and  see  Rex  v.  Lord  Melville,  29  St.  Tr. 
1457,  and  Mortimer  v.  Craddock,  12  L.  J.  N.  S.  166. 

X  Craig  on  dem.  of  Anne.sley  v.  Earl  of  Anglesea,  17  St.  Tr.  1416  ;  and  see  the 
Tracy  Peerage,  11  C.  and  F.  154.  Clunnes  v.  Pezzy,  1  Campb.  8.  Lawton  u. 
Sweeney.  8  Jurist,  964.     1  Greenleaf 's  L.  of  Ev.  sect.  37. 

^  Rex  V.  De  laMotte,  21  St.Tr.  810. 


66  SUPPBESSION,   DESTRUCTION,   FABRICATION 

which  caused  his  death,  was  a  fact  which  operated  most  prejudicially 
against  the  prisoner.  In  his  charge  to  the  jury,  Mr.  Justice  Bul- 
ler  laid  great  stress  on  that  circumstance.  "  Was  there  anything 
so  likely,"  said  the  learned  judge,  to  lead  to  a  discovery  as 
[  *T4  ]  the  remains,  however  small  they  might  have  *been,  of  med- 
icine in  the  bottle  ?  But  that  is  destroyed  by  the  prisoner. 
In  the  moment  he  is  doing  it,  he  is  found  fault  with.  What  does 
he  do  next  ?  He  takes  the  second  bottle,  puts  water  into  that,  and 
rinses  it  also.  He  is  checked  by  Lady  Boughton,  and  asked  what 
he  meant  by  it — why  he  meddled  with  the  bottles  ?  His  answer  is, 
he  did  it  to  taste  it ;  but  did  he  taste  the  first  bottle  ?  Lady  Bough- 
ton  swears  he  did  not.  The  next  thing  he  does,  is  to  get  all  the 
things  sent  out  of  the  room  ;  for  when  the  servant  comes  up,  he  or- 
ders her  to  take  away  the  bottles,  the  basin,  and  the  dirty  things. 
He  puts  the  bottles  into  her  hand,  and  she  was  going  to  carry  them 
away,  but  Lady  Boughton  stopped  her.  Why  were  all  these  things 
to  be  removed  ?  Why  was  it  necessary  for  the  prisoner,  who  was 
fully  advertised  of  the  consequence  by  Lady  Boughton,  to  insist 
upon  having  everything  removed  ?  Why  should  he  be  so  solicitous 
to  remove  everything  that  might  lead  to  a  discovery  ?"* 

In  the  case  of  Robert  Sawle  Donnall,  who  was  tried  before  Mr. 
Justice  Abbott  at  Launceston  spring  assizes,  1817,  upon  an  indict- 
ment charging  him  with  the  murder  of  his  mother-in-law  by  poison, 
a  fact  of  the  same  kind  was  adduced  in  evidence.  The  contents  of 
the  stomach,  which  had  been  placed  in  a  jug  for  examination,  were 
clandestinely  thrown  by  the  prisoner  into  a  vessel  containing  a  large 
quantity  of  water.  Upon  this  circumstance  the  learned  judge  com- 
mented very  forcibly  in  his  charge  to  the  jury.  "  What  pretence," 
said  he,  "  was  there  for  this  ?  And  if  the  prisoner  did  it,  why  do 
it  in  secrecy  ?  Why  place  the  jug  in  the  precise  position  in  which 
it  was  left  by  the  medical  man  ?  Why  not  allow  it  to  remain  in  the 
situation  in  which  a  vessel  may  be  placed  in  the  progress  of  such 
an  operation  ?"f 

A  boatman  was  tried  at  Warwick  spring  assizes,  1836, 
[  *75  ]  'before  Mr.  Justice  Bosanquet,  for  stealing  a  quantity  of 
rum  which  had  been  delivered  to  his  master,  a  carrier  by 
canal,  for  conveyance  from  Liverpool  to  Birmingham.  The  carrier's 
agent  at  Liverpool  had  taken  a  sample  of  the  spirit  and  tested  its 
strength.     Upon  the  delivery  at  its  place  of  destination,  the  spirit 

*  Gurney's  report,  p.  54.  t  Frazer's  Report,  p.  171. 


AND   SIMULATION   OF  EVIDENCE.  57 

was  found  to  be  under  proof,  and  the  portion  abstracted  had  been 
replaced  with  water.  The  carrier's  clerk,  on  the  complaint  of  the 
consignee,  went  to  the  boat  where  the  prisoner  was,  in  order  to  re- 
quire explanation  ;  but  as  soon  as  he  had  stepped  into  it,  the  pris- 
oner pushed  him  back  upon  the  wharf,  and  forced  the  boat  into  the 
middle  of  the  canal,  where  he  broke  three  jars  and  emptied  their 
contents,  which  bj  the  smell  were  proved  to  be  rum,  into  the  canal. 
The  prisoner  was  convicted.* 

To  this  head  may  be  referred  the  common  case  of  obliteration  of 
marks  of  identity,  as  by  filing  away  the  engraving  from  articles  of 
plate,  or  the  removal,  or  endeavour  to  remove,  from  the  person  or 
clothes,  stains  of  blood  or  other  marks. 

It  is  not  uncommon  in  cases  of  supposed  poisoning,  that  great  re- 
pugnance is  manifested  by  the  suspected  parties  that  the  body  should 
be  submitted  to  anatomical  examination.  The  expression  of  such 
repugnance  is  a  fact  to  be  taken  into  consideration  like  all  other 
facts  ;  but  it  by  no  means  follows  that  it  is  to  be  considered  as  a 
mark  of  conscious  guilt.  It  is  well  known  that  many  persons  have 
a  great  prejudice  against  the  anatomical  examination  of  their  near 
connections ;  much  therefore  depends  upon  the  situation  in  life  of 
the  parties,  and  whether  they  have  been  nearly  related.  In  a  case 
of  this  kind,  J\Ir.  Baron  Rolfe  said  to  the  jury,  that  the  question 
was,  from  what  motive  the  reluctance  arose  ?  On  the  one  hand  it 
was  suggested,  said  the  learned  Judge,  that  it  was  be- 
cause the  prisoner  did  not  *wish  the  cause  of  his  wife's  [  *76  ] 
death  to  be  investigated,  being  afraid  it  would  be  discov- 
ered that  she  had  died  from  arsenic.  On  the  other  hand  it  was  al- 
leged that  his  reluctance  arose  from  his  horror  of  the  notion  of  his 
wife's  dead  body  being  taken  up  and  exposed  to  the  investigation  of 
the  surgeons,  at  which  the  feelings  were  apt  to  revolt.  Many  per- 
sons no  doubt  felt  very  great  horror  at  the  notion  of  such  things  be- 
ing done  to  themselves  or  those  connected  Avith  them,  -whilst  others 
again  were  indifferent  on  the  subject,  leaving  their  own  bodies  to  be 
dissected.  But  few  persons  liked  to  have  their  wives  or  their  daugh- 
ters so  exposed  ;  the  prisoner,  said  the  learned  judge,  might  be  one 
of  them,  and  his  feelings  on  that  subject  might  have  prompted  the 
remark  alleged  against  him ;  and  surely  he  must  have  known  that 
any  reluctance  expressed  by  him  for  an  inquiry,  or  wish  to  stop  it, 

*  Rex  V.  Thomas. 

10 


68  SUPPRESSION,  DBSTRUOTION,  FABRICATION 

would  only  tend  to  make  those  who  were  about  to  make  it,  perse- 
vere*. 

Another  common  case  of  suppression  of  evidence,  is  the  attempt 
to  prevent  posif  mortem  examination  by  the  premature  interment  of 
human  remains,  under  the  pretext  that  it  is  rendered  necessary  by 
the  state  of  the  body.  In  the  case  of  violent  or  sudden  death,  and 
especially  when  caused  by  poison,  it  cannot  but  be  known  that  the 
post  mortem  examination  will  always  furnish  important,  and  general- 
ly conclusive  evidentiary  matter  as  to  the  cause  of  deathf .  In  the 
before-mentioned  case  of  Robert  Sawle  Donnall,  Mr.  Justice  Abbott 
told  the  jury  that  the  conduct  of  the  prisoner — his  eagerness  in 
causing  the  body  to  be  put  into  a  shell,  and  afterwards  to  be  speedi- 
ly interred  and  put  out  of  sight, — was  a  circumstance  most  material 
for  their  consideration ;  for  that,  although  the  examination  of  the 
body  and  the  experiments  that  were  made  might  not  lead 
[  *77  ]  to  a  certain  conclusion,  as  to  the  charge  stated,  that  *the 
deceased  got  her  death  by  poison  administered  to  her  by 
the  prisoner,  yet  if  the  prisoner,  as  a  medical  man,  had  been  so 
wicked  as  to  administer  that  poison,  he  must  have  known  that  the 
examination  of  the  body  would  divulge  it:|:. 

The  concealment  of  death  by  the  destruction  or  attempted  des- 
truction of  human  remains,  is  a  fact  of  the  same  kind§.  In  such 
cases  the  presumption  of  criminality  results  from  the  act  of  conceal- 
ment rather  than  from  the  nature  of  the  means  employed.  In  a 
revolting  case,  where  the  prisoner  admitted  that  he  had  cut  oflf  the 
head  and  legs  from  the  trunk  of  a  female,  and  concealed  the  remains 
in  various  places,  but  alleged  that  her  death  had  taken  place  by  ac- 
cident while  she  was  in  his  company,  and  that  in  the  alarm  of  the 
moment,  and  to  prevent  suspicion,  he  had  determined  to  conceal  the 
death.  Lord  Chief  Justice  Tindal  told  the  jury  that  the  concealment 
of  death  under  such  circumstances,  had  always  been  considered  to 
be  a  point  of  the  greatest  suspicion,  but  that  this  evidence  must  be 
received  with  a  certain  degree  of  modification,  and  especially  in  a 
case  where  the  feelings  might  be  excited  by  the  singular  means  of 
concealment  adopted  by  the  prisoner.  He  made  this  observation, 
he  said,  because  although  many  persons  of  a  strong  mind  might  re- 
sist the  temptation  held  out  to  them,  to  get  rid  of  suspicion  by  such 

*  Reg.  u,  Graham,  Carliele  summer  assizes,  1845. 

t  Rex  V.  Donellan,  Rex  v.  Donnal],  Rex  v.  Burdock,  post. 

%  Frazer's  Rep.  p.  170. 

§  Rex  V.  Gardelle,  4  Celebrated  Trials,  400.    Rex  v.  Cook.    Reg.  v.  Goo^e,  post 


AND   SIMULATION    OF   EVIDENCE.  59 

means,  yet  there  are  others  whose  determination  is  so  weak  as  to  in- 
duce them  to  adopt  such  a  course  to  save  them  from  the  suspicion  of 
crime.  But  there  was  also  another  class  of  persons  whose  minds  are 
of  a  different  kind,  and  who,  from  their  cunning  disposition,  would 
prefer  to  pursue  the  crooked  way  rather  than  to  stand  before  a-  state- 
ment of  the  real  truth.  This  point  of  evidence  was  there- 
fore for  *the  consideration  of  the  jury,  and  it  was  for  [  *78  ] 
them  to  judge  how  far  it  was  a  proof  of  the  prisoner's  guilt ; 
but  the  mere  general  fact  of  the  concealment,  added  the  learned 
judge,  was  to  be  considered,  and  not  the  circumstances  under  which 
it  took  place*. 

Under  this  head  of  evidence  may  be  included  all  attempts  to  pol- 
lute or  disturb  the  current  of  truth,  or  to  prevent  a  fair  and  impar- 
tial trial ;  as  by  endeavours  to  suborn  or  bribe,  or  otherwise  tamper 
with  the  prosecutor  or  the  witnesses,  or  the  officers  or  ministers  of 
justice  ;  any  of  which  acts,  clearly  brought  home  to  the  prisoner  or 
his  authorized  agents,  are  of  a  most  prejudicial  and  dangerous  cha- 
racter. 

On  the  trial  of  Captain  Donellan,  Mr.  Justice  Buller,  in  his 
charge  to  the  jury,  said,  "  As  to  the  conduct  of  the  prisoner  before 
the  coroner.  Lady  Boughton  had  mentioned  the  circumstance  of  the 
prisoner's  rinsing  out  the  bottle ;  one  of  the  coroner's  jury  swears 
that  he  saw  him  pull  her  by  the  sleeve.  Why  did  he  do  that  ?  If 
he  was  innocent,  would  it  not  be  his  wish  and  anxious  desire,  as  he 
expresses  in  his  letter,  that  all  possible  inquiry  should  be  made  ? 
What  passes  afterwards  ?  When  they  get  home,  the  prisoner  tells 
his  wife  that  Lady  Boughton  had  given  this  evidence  unnecessarily ; 
that  she  was  not  obliged  to  say  anything  but  in  answer  to  questions 
that  were  put  to  her,  and  that  the  question  about  rinsing  out  the 
bottles  was  not  asked  her.  Did  the  prisoner  mean  that  she  should 
suppress  the  truth  ?  that  she  should  endeavour  to  avoid  a  discovery 
as  much  as  she  could,  by  barely  saying  yes  or  no  to  the  questions 
that  were  asked  her,  and  not  disclose  the  whole  truth  ?  If  he  was 
innocent,  how  could  the  truth  affect  him  ?  but  at  that  time  the  cir- 
cumstance of  rinsing  the  bottles  appeared  even  to  him  to  be  so  deci- 
sive that  he  stopped  her  in  the  instant,  and  he  blamed  her 
afterwards  *for  having  mentioned  it.  All  these,"  said  [  *79  ] 
the  learned  judge,  "  are  very  strong  facts  to  show  what 
were  passing  in  the  prisoner's  own  mindf." 

*  Kex  V.  Greenacre,  C.  C.  Court,  April  1837,  infra. 
t  Garney's  Eep,  p.  56, 


60  SUPPRESSION,   DESTRUCTION,   FABRICATION 

To  this  class  of  facts  may  also  be  referred  the  frequent  case  of 
false  representations  as  to  the  state  of  another  person's  health,  -with 
the  intention  of  preparing  the  connections  for  the  event  of  sudden 
death,  and  to  diminish  the  surprise  and  alarm  which  in  such  circum- 
stances follow  the  occurrence,*  and  the  not  unfrequent  pretence  of 
having  taken  part  of  the  draught  which  has  been  the  cause  of  death. f 
So,  it  is  not  unusual  to  endeavor  to  induce  the  suspicion  of  suicide 
by  placing  some  instrument  of  destruction  in  the  hand  of  the  mur- 
dered party ;  but  consistency  is  sometimes  overlooked  by  placing 
the  weapon  in  the  left  hand.| 

Facts  are  often  simulated  for  the  purpose  of  attracting  suspicion 
in  a  direction  different  from  the  true  one.  Cunning  is,  however,  but 
"  a  sinister  or  crooked  wisdom  ;"  and  not  unfrequently  the  means 
employed  to  prevent  or  avert  suspicion  lead  to  detection.  Facts  of 
this  kind  are  properly  considered  as  moral  indications  of  a  very 
stringent  nature.  In  the  case  of  Richard  Patch,  who  was  convicted 
at  the  Surrey  spring  assizes,  1806,  of  the  murder  of  Mr.  Blight, 
his  partner,  the  prisoner,  a  few  evenings  before  the  fatal  deed,  while 
his  friend  was  at  a  distance  from  home,  having  sent  a  female  servant, 
the  only  other  inmate  of  the  house,  on  an  errand,  fired  a  ball  through 
the  window  of  the  room  in  which  the  deceased  usually  sat  at  night, 
doubtless  with  the  intention  of  creating  the  impression  that  some  other 
person  was  desirous  of  destroying  him.  The  prisoner's  object 
[  *80  ]  was  to  possess  himself  of  his  benefactor's  *business  and  prop- 
erty ;  and  in  order  to  divert  suspicion  from  himself,  he  affect- 
ed great  tenderness  and  sorrow. §  But  from  the  course  of  the  ball 
through  the  shutter,  and  other  circumstances,  it  was  impossible  that 
it  could  have  been  discharged  elsewhere  than  from  the  deceased's 
own  premises,  or  by  any  other  person  than  the  prisoner  himself. 

In  the  year  1764  a  citizen  of  Liege  was  found  shot,  and  his  own 
pistol  was  discovered  lying  near  him  ;  from  which  circumstance,  to- 
gether with  that  of  no  person  having  been  seen  to  enter  or  leave  the 
house  of  the  deceased,  it  was  concluded  that  he  had  destroyed  him- 
self;  but  on  examining  the  ball  by  which  he  had  been  killed,  it  was 
found  to  be  too  large  ever  to  have  entered  that  pistol.  The  real 
murderers  were  ultimately  discovered,  ||  but  not  until  after  the  terrors 

*  Rex  V.  Donellan,  ibid. 

t  Eex  V.  Wescombe,  Exeter  summer  assizes,  1829. 

i  Rex  V.  Eitter,  Warwick  autumn  assizes,  1824,  coram  Mr.  Justice  Taunton. 

§  Gurney's  Report. 

II  3  Paris  and  Fonblanque's  Med.  Jur.  34,  39. 


THE    SIMULATION    OP   FACTS.  61 

of  the  rack  had  been  applied  to  an  innocent  girl,  the  niece  of  the 
deceased, 

Mary  Norkott,  John  Okeman  and  Agnes  his  wife  were  convicted, 
in  the  fourth  year  of  the  reign  of  Charles  the  First,  before  Mr.  Jus- 
tice Harvey,  of  the  murder  of  Jane  Norkott  under  very  similar  cir- 
cumstances of  this  nature.  The  deceased  was  found  dead  i;i  her 
bed,  her  throat  cut,  and  a  knife  sticking  in  the  floor.  Several  per- 
sons Avho  slept  in  the  adjoining  room  deposed  that  the  deceased  went 
to  bed  with  her  child,  her  husband  being  absent,  and  that  no  person 
afterwards  came  into  the  house.  The  coroner's  jury  returned  a 
Yevdlct  0^  felo-de-se  ;  but  suspicion  being  excited  against  these  indi- 
viduals, the  jury,  whose  verdict  was  not  yet  drawn  up  in  form,  de- 
sired that  the  remains  of  the  deceased  might  be  taken  up ;  and  ac- 
cordingly, thirty  days  after  her  death,  they  were  taken  up,  and  the 
jury  charged  the  prisoners  with  the  murder.  They  were  tried  at 
the  Hertford  assizes  and  acquitted,  but  so  much  against 
*the  evidence,  that  the  judge  let  fall  his  opinion  that  it  were  [  *81  ] 
better  an  appeal  were  brought  than  that  so  foul  a  murder 
should  escape  unpunished.  Accordingly  an  appeal  was  brought  by 
the  child  against  his  father,  grandmother,  and  aunt,  and  her  husband 
Okeman.  The  evidence  adduced  was,  that  the  deceased  lay  in  a 
composed  manner  in  her  bed,  the  bedclothes  not  at  all  disturbed, 
that  her  child  lay  by  her  side,  and  that  her  throat  was  cut  from  ear 
to  ear,  and  her  neck  broken.  There  was  no  blood  in  the  bed,  except 
a  tincture  on  the  bolster  where  her  head  lay.  From  the  bed's  head 
there  was  a  stream  of  blood  on  the  floor,  which  ran  along  till  it 
pounded  in  the  bondings  of  the  floor.  There  was  also  another  stream 
of  blood  en  the  floor  at  the  bed's  foot,  which  pounded  also  on  the 
floor  to  a  very  great  quantity ;  but  there  was  no  communication  of 
blood  between  these  two  places,  nor  upon  the  bed.  A  bloody  knife 
was  found  in  the  morning  sticking  in  the  floor,  at  some  distance  from 
the  bed  ;  but  the  point  of  the  knife,  as  it  stuck,  was  toward  the  bed, 
and  the  handle  from  the  bed,  and  there  was  the  print  of  the  thumb 
and  fingers  of  a  left  hand.  Okeman  was  acquitted,  but  the  others 
were  convicted  and  executed.* 

In  the  case  of  John  Swan  and  Elizabeth  Jefii-eys,  who  were  con- 
victed at  the  Chelmsford  spring  assizes,  1752,  of  the  murder  of 
Joseph  Jeffreys,  the  uncle  of  the  female  prisoner,  it  appeared  that 
the  deceased  was  murdered  in  the  night,  and  that  the  prisoners  gave 

*  14  St.  Tr.  1324:  Beck's  Med.  Jur.  543. 


62  SUPPRESSION,   DESTRUCTION,   ETC.  OF   EVIDENCE. 

an  alarm  of  murder  from  within  the  house  ;  whereas  the  undisturbed 
state  of  the  dew  on  the  grass  on  the  outside  rendered  it  certain  that 
the  parties  implicated  were  domestics.* 

Sometimes  the  object  of  simulated  facts  is  not  merely  to  divert 
suspicion  from  the  real  culprit,  but  also  to  attract  it  *toward 
[  *82  ]  ,  a  particular  individual  :f  and  such  is  the  weakness  of  hu- 
man nature,  that  there  are  even  instances  where  innocence 
has  degraded  and  betrayed  itself  by  the  simulation  of  facts,  for  the 
purpose  of  evading  the  force  of  circumstances  of  apparent  suspicion. 
An  instructive  case  of  the  kind  is  mentioned  by  Sir  Edward  Coke. f 
"  In  the  county  of  Warwick,"  says  he,  "  there  were  two  brethren ; 
the  one  having  issue  a  daughter,  and  being  seised  of  lands  in  fee, 
devised  the  government  of  his  daughter  and  his  lands,  until  she 
came  to  her  age  of  sixteen  years,  to  his  brother,  and  died.  The  un- 
cle brought  up  his  niece  very  well  both  at  her  book  and  needle,  etc., 
and  she  was  about  eight  or  nine  years  of  age  :  her  uncle  for  some 
oJSence  correcting  her,  she  was  heard  to  say,  '  Oh,  good  uncle,  kill 
me  not !'  After  which  time  the  child,  after  much  inquiry,  could 
not  be  heard  of  :  whereupon  the  uncle,  being  suspected  of  the  mur- 
der of  her,  the  rather  for  that  he  was  her  next  heir,  was  upon  exami- 
nation, anno  8  Jac.  Regis,  committed  to  the  jail  for  suspicion  of 
murder,  and  was  admonished  by  the  justices  of  assize  to  find  out  the 
child,  and  thereupon  bailed  until  the  next  assizes.  Against  which 
time,  for  that  he  could  not  find  her,  and  fearing  what  would  fall  out 
against  him,  he  took  another  child  as  like  unto  her  both  in  person 
and  years  as  be  could  find,  and  appareled  her  like  unto  the  true 
child,  and  brought  her  to  the  nest  assizes :  but  upon  view  and  ex- 
amination she  was  found  not  to  be  the  true  child ;  and  upon  these 
presumptions  he  was  indicted,  found  guilty,  had  judgment  and  was 
hanged.  But  the  truth  of  the  case  was,  that  the  child  being  beaten 
over  night,  the  next  morning  when  she  should  go  to  school  ran  away 
into  the  next  county ;  and  being  well  educated,  she  was  received  and 
entertained  of  a  stranger  ;  and  when  she  was  sixteen  years  old,  at 
what  time  she  should  come  to  her  *land,  she  came  to  de- 
[  *83  ]  mand  it,  and  was  directly  proved  to  be  the  true  child." 
The  learned  author  adds,  "  We  have  reported  this  case  for 
a  double  caveat ;  first  to  judges,  that  they  in  case  of  life  judge  not 

*    U  St.  Tr,  1193.     3  Paris  and  Fonbl.  38.     Mascardns  De  Prob.  CoQcl.  cclxxiii. 
n.  20. 
t   See  the  case  of  Richard  Coleman,  ante,  p.  68. 
t  Third  Institutes,  oh.  104,  232. 


STATUTORY   PRESUMPTIONS.  63 

too  hastily  upon  bare  presumption ;  and,  secondly,  to  the  innocent 
and  true  man,  that  he  never  seek  to  excuse  himself  by  false  or  un- 
due means,  lest  thereby  he,  offending  God  (the  author  of  truth), 
overthrow  himself  as  the  uncle  did." 

An  unsuccessful  attempt  to  establish  an  alibi  is  always  a  circum- 
stance of  great  weight  against  the  prisoner,  because  the  resort  to 
that  kind  of  defence  implies  an  admission  of  the  truth  and  relevancy 
of  the  facts  alleged,  and  the  correctness  of  the  inference  drawn  from 
them  if  they  remain  uncontradicted  ;  and  where  the  defence  of  alibi 
fails,  it  is  generally  on  the  ground  that  the  witnesses  are  disbelieved 
and  the  story  considered  to  be  a  fabrication.  From  the  facility  with 
which  this  kind  of  defence  may  be  fabricated,  it  is  commonly  enter- 
tained with  suspicion,  and  sometimes,  perhaps,  unjustly  so.* 

The  defence  of  an  alibi  often  involves  considerations  of  the  most 
difficult  and  perplexing  nature.  It  is  not  an  uncommon  artifice  to 
endeavor  to  give  coherence  and  effect  to  a  fabricated  defence  of  alibi, 
by  assigning  the  events  of  another  day  to  that  on  which  the  offence 
was  committed ;  so  that  the  events,  being  true  in  themselves,  are 
necessarily  consistent  with  each  other,  and  false  only  as  they  are  ap- 
plied to  the  day  in  question. 

Circumstances  such  as  those  which  have  been  enumerated,  are 
justly  considered  to  be  incompatible  with  integrity  and  innocence, 
and  referrible  to  a  consciousness  of  guilt  and  a  desire  to  evade  the 
force  of  facts  indicative  of  it ;  and  they  consequently  subject  the 
party  guilty  of  them  to  very  unfavorable  and  injurious  inferences. 


*SECTION§.  [♦84] 

STATUTORY   PRESUMPTIONS. 

Upon  the  principle  of  the  rule  of  presumption  against  persons  in 
whose  possession  the  fruits  of  crime  are  discovered  recently  after  its 
commission,  many  acts  have  been  constituted  legal  presumptions  of 
guilt  by  statute,  so  as  to  throw  the  onus  of  rebutting  or  displacing 
Buch  presumptions,  upon  the  party  accused;  such,  for  example, 
among  many  others,  as  the  making  or  possessing,  or  buying  or  sell- 
ing of  coining  tools  or  instruments  ;t  the  possession  of  forged  bank 
notes  knowing  the  same  to  be  forged,  without  lawful  excuse  ;:j:  the 

*  See  Rex  v.  Kobinson,  post.  t  St.  2  W.  IV.  c.  30.  s.  10. 

t  St.  11  G.  IV.  and  1  W.  IV.  c.  66.  a.  12—19,  and  28. 


64  STATUTORY  PRESUMPTIONS. 

possession  of  marine  stores  marked  with  the  king's  mark,*  and  the 
acting  or  behaving  as  the  master  or  mistress  of  a  disorderly  house. f 
The  revenue  laws  abound  with  similar  instances  of  presumptions  cre- 
ated for  the  purpose  of  protecting  the  public  against  infractions  of 
those  laws. 

By  a  remarkable  anomaly,  probably  grounded  upon  some  supposed 
analogy  to  the  rule  alluded  to,  the  sale  by  a  shopman  of  a  book  or 
newspaper  containing  libellous  matter,  was  formerly  held  to  consti- 
tute a  conclusive  presumption  of  publication  by  the  authority  of  the 
master,  from  the  consequences  of  which  he  could  not  protect  himself 
by  shewing  that  such  sale  was  not  only  unauthorized,  but  even  with- 
out his  knowledge.  :|:  This  certainly  carried  the  doctrine  of  agency 
to  an  unwarrantable  extent.  A  late  statute§  *has  now 
[  *85  ]  brought  this  part  of  our  law  into  harmony  with  the  other 
parts  of  the  system,  by  providing  that  whensoever,  upon 
any  trial  for  the  publication  of  a  libel,  evidence  shall  have  been  given 
which  shall  establish  a  presumptive  case  of  publication  against  the 
defendant  by  the  act  of  any  other  person  by  his  authority,  it  shall 
be  competent  to  him  to  prove  that  such  publication  was  made  with- 
out his  authority,  consent  or  knowledge,  and  that  it  did  not  arise 
from  want  of  due  care  on  his  part. 

Of  statutory  presumptions  this  general  notice  is  sufficient,  as  it  is 
the  object  of  this  essay  to  consider  the  natural  connection  between 
facts  and  the  presumptions  to  which  they  lead,  and  not  to  enumerate 
the  presumptions  created  by  positive  law.  |1 

It  is  evident  that  all  such  arbitrary  presumptions  depend  for  their 
reasonable  force  and  authority  upon  the  obnoxious  character  j:>er  se 
of  the  particular  acts  thus  constituted  legal  presumptions,  upon  their 
strict  and  natural  connection  and  relation,  as  pregnant  evidence  of 
the  specific  legal  offence,  and  upon  the  facihty  of  proof  by  the  ac- 
cused of  matter  of  legal  excuse  Ayhen  such  matter  exists. 

In  the  interpretations  of  laws  which  create  positive  presumptions 
of  guilt,  it  is  essential  to  distinguish  between  the  letter  and  the  spirit 
of  the  enactment;  to  such  laws,  the  maxim  is  specially  pertinent. 

*  St.  9  and  10  W.  III.  c.  41  :  and  39  and  40  G-  III.  c.  89. 
t  21  G.  III.  c  49. 

X  Rex  V.  Almon,  20  St.  Tr.  803.     Rex  v.  Cuthell,  27,  ib.  641. 
§  St.  6  and  7  Vict.  c.  69.,s.  7. 

II  See  a  copious  collection  of  such  presumptions,  1  Taylor's  L.  of  Ev,  65.  96,  103, 
269. 


STATUTORY  PRESUMPTIONS.  65 

"  scire  leges,  non  est  earum  verba  tenere,  sed  vim  ao  potestatem*." 
It  is  not  practicable  to  predicate  all  the  cases  which  may  fall  within 
the  language  of  the  rule,  or  to  anticipate  the  necessary  exceptions 
which  a  proper  regard  to  the  intention  of  the  legislature  would  exclude 
from  its  operation,  and  which  it  is  reasonable  to  conclude 
that  the  legislature  would  have  *expressly  excluded  if  they  [  *86  ] 
had  been  foreseen.  However  peremptory  and  apparently 
conclusive,  therefore,  the  language  of  such  enactments  may  be,  it  is 
not  allowed  to  exclude  or  control  the  just  force  and  operation  of  such 
concommitant  circumstances  as  tend  to  repel  the  presumption  of  the 
malus  animus  arising  from  the  bare  facts  which  constitute  the  pre- 
sumption, f  The  following  cases  illustrate  the  necessity  of  thus  con- 
trolling the  application  of  positive  presumptions,  by  such  qualifying 
considerations  as  must  be  supposed  to  have  been  within  the  contem- 
plation of  the  legislature  though  it  has  not  expressed  them  in  words. 
A  widow  woman  was  indicted  before  Mr.  Justice  Foster  on  the  9th 
and  10th  William  III.  c.  41,  for  having  in  her  custody  divers  pieces 
of  canvas  marked  with  the  king's  mark,  she  not  being  employed  by 
the  Commissioners  of  the  Navy  to  make  the  same  for  the  king's  use. 
The  canvas  was  marked  as  charged  in  the  indictment,  and  was  clearly 
proved  to  be  such  as  Avas  made  for  the  use  of  the  navy,  and  to  have 
been  found  in  the  defendant's  custody.  The  defendant  did  not  at- 
tempt to  show  that  she  was  within  any  exception  of  the  act,  as  being 
a  person  employed  to  make  canvas  for  the  navy  ;  nor  did  she  offer 
to  produce  any  certificate  from  any  officer  of  the  crown,  touching 
the  occasion  of  such  canvas  coming  into  her  possession.  Her  de- 
fence was,  that  when  there  happened  to  be  in  His  Majesty's  stores 
a  considerable  quantity  of  old  sails,  no  longer  fit  for  that  use,  it  had 
been  customary  for  the  persons  entrusted  with  the  stores  to  make  a 
public  sale  of  them  in  lots  larger  or  smaller,  as  best  suited  the  pur- 
pose of  the  buyers  ;  and  that  the  canvas  produced  in  evidence, 
which  had  been  made  up  long  since,  some  for  table  linen,  and  some 
for  sheeting,  had  been  in  common  use  in  the  defendant's 
family  a  considerable  time  before  her  husband's  death  ;  *and  [  *87  ] 
upon  his  death  came  to  the  defendant,  and  had  been  used 
in  the  same  open  manner  by  her  to  the  time  of  prosecution.  The 
counsel  for  the  crown  insisted  that  as  the  act  allows  of  but  one  ex- 
cuse, the  defendant,  unless  she  could  avail  herself  of  that,  could  not 
resort  to  any  other ,  that,  if  the  canvas  were  really  bought  of  the 

•  L.  47.  §  de  legibus.  t  Puffendorf,  lib.  v.  c  12.     2  East's  P.  C.  765. 

11 


66  STATUTORY  PRESUMPTIONS. 

commiasioners,  or  of  persons  acting  under  them,  there  ought  to  have 
been  a  certificate  taken  at  the  time  of  the  purchase,  and  that  the 
second  section  admits  of  no  other  excuse.  But  the  learned  judge 
was  of  opinion,  that  though  the  clause  of  the  statute  which  directs 
the  sale  of  these  things  had  not  pointed  out  any  other  way  of  indem- 
nifying the  buyer  than  the  certificate,  and  though  the  second  section 
seemed  to  exclude  any  other  excuse  for  those  in  whose  custody  they 
shall  be  found,  yet  still  the  circumstances  attending  every  case  which 
might  seem  to  fall  within  the  act,  ought  to  be  taken  into  considera- 
tion ;  otherwise  a  law  calculated  for  wise  purposes,  might  by  a  too 
rigid  construction  of  it,  be  made  a  handle  for  oppression.  There 
was  no  room  to  say  that  this  canvas  came  into  the  possession  of  the 
defendant  by  any  act  of  her  own  ;  it  was  brought  into  family  use  in 
the  lifetime  of  her  husband,  and  it  continued  so  to  the  time  of  his 
death ;  and  by  act  of  law  it  came  to  her.  Things  of  that  kind  had 
frequently  been  exposed  to  public  sale  ;  and  though  the  act  pointed 
out  an  expedient  for  the  indemnity  of  buyers,  yet  probably  few  buy- 
ers, especially  where  small  quantities  had  been  purchased  at  one  sale, 
had  used  the  caution  suggested  to  them  by  the  act.  And  if  the  de- 
fendant's husband  really  bought  the  linen  at  a  public  sale,  but  neg- 
lected to  take  a  certificate,  or  did  not  preserve  it,  it  would  be  con- 
trary to  natural  justice,  after  such  a  length  of  time,  to  punish  her 
for  his  neglect.  He  therefore  thought  the  evidence  given  by  the  de- 
fendant proper  to  be  left  to  the  jury ;  and  directed  them,  that  if 

upon  the  whole  evidence  they  were  of  opinion  that  the  de- 
[  *88  ]     fendant  *came  to  the  possession  of  the  linen  without  any 

fraud  or  misbehavior  on  her  part,  they  would  acquit  her ; 
and  she  was  accordingly  acquitted.* 

In  a  similar  case  Lord  Kenyon  said,  that  though  in  prosecutions 
under  the  statutes  9  and  10  Will.  III.  c.  41,  and  17  Geo.  II.  c.  40. 
s.  10,  it  was  sufficient  for  the  crown  to  prove  the  finding  of  the 
stores  with  the  king's  mark  in  the  defendant's  possession,  to  call 
upon  him  to  account  for  that  possession,  so  as  to  throw  upon  him 
the  onus  of  proving  that  he  had  legally  become  possessed  of  them, 
yet  that  he  had  other  means  of  showing  that  he  had  lawfully  be- 
come possessed  of  them  than  by  the  production  of  the  certificate 
from  the  navy  board  ;  as  for  example,  he  might  show  that  he  had 
bought  them  from  another  person  who  was  in  the  habit  of  buy- 
ing stores  at  the  navy  sales,  and  who  therefore  might  fairly  be  pre- 
sumed to  have  had  the  regular  certificate,  but  who,  when  he  sold 
•  Foster's  C.  L.  App.  439. 


STATUTORY  PRESUMPTIONS.  67 

part  to  the  defendant,  could  not,  consistently  with  his  own  safety, 
part  with  the  certificate  he  had  obtained  of  his  having  been  the  pur- 
chaser of  the  whole  lot.* 

Upon  an  indictment  on  the  statnte  5  and]6  Will.  IV.  c.  19,  which 
makes  it  a  misdemeanour  in  the  master  of  a  vessel  to  leave  a  seaman 
behind,  and  enacts  that  the  only  defence  which  he  can  set  up  is  the 
production  of  the  certificate  of  the  consul  or  other  party  mentioned 
in  the  statute,  it  was  held  nevertheless  that  a  defendant  might  show 
that  it  was  impracticable  to  obtain  such  certificate,!  and  that,  even 
before  such  qualification  was  introduced  into  the  subsequent  statute, 
7  and  8  Vict.  c.  112.  s.  48. 

In  like  manner,  although  the  repealed  statute  27  Jac.  1,  c.  17. 
made  the  concealment  of  the  death  of  an  illegitimate  child  conclu- 
sive evidence  of  murder  by  the  mother,  except  *she  could 
prove  by  one  witness  at  least  that  it  was  actually  born  dead,  [  *89  ] 
nevertheless  in  the  construction  of  that  law  it  has  always 
been  usual,  at  least  of  late  years,  to  require  that  some  sort  of  pre- 
sumptive evidence  should  be  given  that  the  child  was  born  alive,  be- 
fore the  other  constrained  presumption  that  the  child  whose  death 
was  concealed  was  therefore  killed  by  its  parent,  was  admitted  to 
convict  the  prisoner.  :|: 

*  Kex  V.  Banks,  1  Esp.  144. 

t  Reg  V.  Dunnet,  1  C.  and  K.  425. 

t  4  Bl.  Comm.  198. 


68  IDENTIFICATION    OF   PERSON. 


[*90]  •CHAPTER    IV. 

EXTRINSIC    AND    MECHANICAL    INCULPATORY 
INDICATIONS, 


Inculpatory  circumstances  of  an  extrinsic  and  mechanical  na- 
ture, are  such  as  are  derived  from  the  physical  peculiarities  and 
characteristics  of  persons  and  things. — from  facts  and  objects  which 
bear  a  relation  to  our  corporeal  nature,  and  are  apparently  indepen- 
dent of  moral  indications.  Such  facts  are  intimately  related  to,  and 
as  it  were  dovetail  with  the  corpus  delicti ;  and  they  are  the  links 
which  establish  the  connection  between  the  guilty  act  and  its  invisi- 
ble moral  origin.  It  is  impossible  even  to  classify,  and  still  less  to 
attempt  an  enumeration  of,  evidentiary  facts  of  the  kind  in  question ; 
but  it  may  be  interesting  and  instructive,  by  way  of  illustration,  to 
advert  to  some  of  the  principal  heads  of  evidence  of  this  kind,  and 
to  some  remarkable  cases  which  have  occurred  in  the  records  of  our 
criminal  jurisprudence. 

The  principal  facts  of  circumstantial  evidence,  of  an  external  char- 
acter, relate  to  questions  of  identity, — (1)  of  person  ;  (2)  of  things  ; 
(3)  of  hand-writing ;  and  (4)  of  time  ;  but  there  must  necessarily 
be  a  number  of  isolated  facts  which  admit  of  no  more  specific  clas- 
sification. 


SECTIOW    1. 

IDENTIFICATION   OF   PERSON. 

It  might  be  concluded,  by  persons  not  conversant  with  judicial 
proceedings,  that  personal  identification  is  seldom  attended 
[  *91  ]  with  serious  difficulty,  but  such  is  not  the  case.  *lllustra- 
tions  are  numerous  to  show  that  what  are  supposed  to  be 
the  clearest  intimations  of  the  senses,  are  sometimes  fallacious  and 
deceptive,  and  some  extraordinary  cases  have  occurred  of  mistaken 
personal  identity.*  Hence  the  particularity,  and,  as  unreflecting 
persons  too  hastily  conclude,  the  frivolous  minuteness  of  inquiry,  by 
professional  advocates  as  to  the  causa  scieniice,  in  cases  of  contro- 
verted identity,  whether  of  person  or  of  things. 

•  Rex  V.  Wood  and  Brown,  ante,  p.  31.    Rex  v.  Colemaa,  ante,  p.  68. 


IDENTIFICATION   OF   PERSON.  69 

Two  men  were  convicted  at  the  Old  Bailey  sessions  in  1797,  be- 
fore Mr.  Justice  Grose,  of  the  murder  of  Syder  Fryer,  Esq.,  and 
executed  ;  the  identity  of  the  prisoners  was  positively  sworn  to  by  a 
lady  who  was  in  company  with  the  deceased  at  the  time  of  the  rob- 
bery and  murder ;  but  several  years  afterwards  two  men,  who  suf- 
fered for  other  crimes,  confessed  at  the  scaffold  the  commission  of 
the  murder  for  which  these  persons  were  executed*. 

A  young  man,  articled  to  an  attorney,  was  tried  at  the  Old  Bai- 
ley on  the  17th  and  19th  of  July  1824,  on  five  indictments  for  dif- 
ferent acts  of  theft.  A  person  resembling  the  prisoner  in  size  and 
general  appearance  had  called  at  various  shops  in  the  metropolis  for 
the  purpose  of  looking  at  books,  jewellery  and  other  articles,  with  the 
pretended  intention  of  making  purchases,  but  made  off  with  the 
property  placed  before  him  while  the  shopkeepers  were  engaged  in 
looking  out  other  articles.  In  each  of  these  cases  the  prisoner  was 
positively  identified  by  several  persons,  while  in  the  majority  of  them 
an  alibi  was  as  clearly  and  positively  established ;  and  the  young 
man  was  proved  to  be  of  orderly  habits  and  irreproachable  charac- 
ter, and  under  no  temptation  from  want  of  money  to  resort  to  acta 
of  dishonesty.  Similar  depredations  on  other  tradesmen 
had  been  committed  by  a  person  resembling  the  *prison-  [  *92  J 
er,  and  those  persons  deposed  that,  though  there  was  a 
considerable  resemblance  to  the  prisoner,  he  was  not  the  person  who 
had  robbed  them.  The  prisoner  was  convicted  upon  one  indictment, 
but  acquitted  on  all  the  others;  and  the  judge  and  jurors  who  tried 
the  last  three  cases  expressed  their  conviction  that  the  witnesses  had 
been  mistaken,  and  that  the  prosecutors  had  been  robbed  by  another 
person  resembling  the  prisoner.  A  pardon  was  immediately  pro- 
cured in  respect  of  that  charge  on  which  conviction  had  taken 
placet. 

A  few  months  before  the  last-mentioned  case  a  respectable  young 
man  was  tried  for  a  highway  robbery  committed  at  Bethnal  Green, 
in  which  neighbourhood  both  he  and  the  prosecutor  resided.  The 
prosecutor  swore  positively  that  the  prisoner  was  the  man  who  rob- 
bed him  of  his  watch.  A  young  woman  to  whom  the  prisoner  paid 
his  addresses,  gave  evidence  which  proved  a  complete  alibi.  The 
prosecutor  was  then  ordered  out  of  court,  and  in  the  interval  ano- 
ther young  man,  who  awaited  his  trial  on  a  capital  charge,  was  in- 
troduced  and  'placed  by  the  side  of  the  prisoner.     The  prosecutor 

*  Rex  V.  Clinch  and  Mackley,  3  P.  and  F.  144. 
t  Rex  V.  Robinson,  Sessions  Papers,  1824. 


70  IDENTIFICATION   OF  PERSON. 

was  again  put  up  into  the  witness-box  and  addressed  thus  :  "  Re- 
member, the  life  of  this  young  man  depends  upon  your  reply  to  the 
question  I  am  about  to  put,  Will  you  swear  again  that  the  young 
man  at  the  bar  is  the  person  who  assaulted  and  robbed  you  ?"  The 
witness  turned  his  head  toward  the  dock,  when  beholding  two  men 
so  nearly  alike  he  became  petrified  with  astonishment,  dropped  his 
hat,  and  was  speechless  for  a  time,  but  at  length  declined  swearing 
to  either.  The  prisoner  was  of  course  acquitted.  The  other  young 
man  was  tried  for  another  offence  and  executed  ;  and  a  few  hours 
before  his  death  acknowledged  that  he  had  committed  the  robbery 

in  question*. 
[  *93  ]         *As  incidental  to  the  establishment  of  identity,  the 

quantity  of  light  necessary  to  enable  a  witness  to  form  a 
satisfactory  opinion  has  occasionally  become  the  subject  of  discus- 
sion. A  man  was  tried  January  12th,  1799,  for  shooting  at  three 
Bow-street  officers,  who,  in  consequence  of  several  robberies  having 
been  committed  near  Hunslow,  were  employed  to  scour  that  neigh- 
bourhood. They  were  attacked  in  a  post-chaise  in  the  evening  of 
the  10th  of  November  by  two  persons  on  horseback,  one  of  whom 
stationed  himself  at  the  head  of  the  horses,  and  the  other  went  to 
the  side  of  the  chaise.  One  of  the  officers  stated  that  the  night 
was  dark,  but  that  from  the  flash  of  the  pistols  he  could  distinctly 
see  that  it  was  a  dark  brown  horse,  between  thirteen  and  fourteen 
hands  high,  of  a  very  remarkable  shape,  having  a  square  head  and 
thick  shoulders,  and  such  that  he  could  select  him  out  of  fifty  horses, 
and  that  he  had  seen  the  horse  since  at  a  stable  in  Long  Acre.  He 
also  perceived,  that  the  person  at  the  side  glass,  had  on  a  rough  shag 
great  coatf.  Similar  evidence  was  given  on  a  trial  for  high  treason:}:. 
In  a  case  of  burglary  before  the  Special  Commission  at  York,  Jan- 
uary 1813,  a  witness  stated  that  a  man  came  into  his  room  in  the 
night,  and  caused  a  Ught  by  striking  on  the  stone  floor  with  some- 
thing like  a  sword,  which  produced  a  flash  near  his  face,  which  ena- 
bled him  to  observe  that  his  forehead  and  cheeks  were  blacked  over 
in  streaks,  that  he  had  on  a  dark-coloured  top  coat  and  a  dark-col- 
oured handkerchief,  and  was  a  large  man,  from  which  circumstances 
and  from  his  voice,  he  believed  the  prisoner  to  be  the  same 
man§. 

*  3  p.  and  F.  143,  where,  and  in  Beck's  Med.  Jnr,  p.  372,  see  other  cases  of  mis- 
taken identity. 

t  Rex  V.  Haines,  3  P.  and  F.  144. 

t  Rex  V.  Byrne,  18  St.  Tr.  819. 

§  Rex  V.  Brook,  31  St.  Tr.  1137 ;  but  see  Traite  dc  la  Preave,  par  Desquiron, 


IDENTIFICATION   OF   PERSON.  71 

•Happily  cases  of  mistaken  personal  identity  have  not  [  94  ] 
been  numerous  in  the  English  Courts  of  Justice  ;  but 
there  must  of  necessity  be  a  greater  liability  to  error,  where  the 
question  of  identity  is  matter  of  deduction  and  inference,  than  where 
it  is  the  subject  of  the  direct  evidence  of  the  senses.  The  circum- 
stances from  which  identity  may  be  thus  inferred  are  innumerable? 
and  admit  of  only  a  very  general  classification,  of  which  the  follow- 
ing are  perhaps  the  most  remarkable  heads. 

Family  likeness  has  often  been  insisted  upon  as  a  reason  for  infer- 
ring parentage  and  identity.  In  the  Douglas  case  Lord  Mansfield 
said  :  "  I  have  always  considered  likeness  as  an  argument  of  a  child's 
being  the  son  of  a  parent ;  and  the  rather,  as  the  distinction  be- 
tween individuals  in  the  human  species  is  more  discernible  than  in 
other  animals ;  a  man  may  survey  ten  thousand  people  before  he 
sees  two  faces  perfectly  alike,  and  in  an  army  of  a  hundred  thou- 
sand men  every  one  may  be  known  from  another.  If  there  should 
be  a  likeness  of  feature,  there  may  be  a  discriminancy  of  voice,  a 
difference  in  the  gestures,  the  smile,  and  various  other  things ; 
whereas  a  family  likeness  runs  generally  through  all  these,  for  in 
everything  there  is  a  resemblance,  as  of  features,  size,  attitude  and 
action*."  But  in  a  case  in  Scotland,  where  the  question  was  who 
was  the  father  of  a  certain  woman,  an  allegation  that  she  had  a 
strong  resemblance  in  the  features  of  the  face  to  one  of  the  tenants 
of  the  alleged  father,  was  held  to  be  not  relevant,  as  being  too  much 
a  matter  of  fancy  and  loose  opinion  to  form  a  material  article  of  ev- 
idencef. 

A  case  of  capital  conviction  occurred  a  few  years  ago 
at  Lincoln  assizes  for  a  crime,  for  which  the  prisoner  *suf-     [  "OS  ] 
fered ;  which    took  place  in  consequence  of  his   having 
given  his  portrait  to  a  youth,  Avhich  enabled  the  police,  after  watch- 
ing a  month  in  London,  to  recognise  and  apprehend   the  wretched 
culpritij:.     It  is  well  known  that   shepherds   readily   identify   their 

274,  where  it  is  stated  tiiat  after  the  condemnation  of  a  man  for  m order,  on  the  tes- 
timony of  two  witnesses,  tliey  recognised  him  by  the  light  from  the  discharge  of  a 
gun,  experiments  were  made  from  which  it  appeared  that  such  recognition  was  im- 
possible. 

*  Collectanea  Juridica,  ii.  402.  Beck's  Med,  Jur.  p.  371 ;  and  see  the  case  of  Doe 
dem.  of  Day  v.  Day,  at  Huntingdon  assizes,  31st  July,  1793  ;  printed  by  Batterworth, 
1823. 

t  Rutlege  V.  Carruthers,  Tait's  L.  of  Ev.  p.  443. 

t  Rex  V.  Arden,  8  London  Med.  Gaz.  36. 


72  IDENTIFICATION   OF  PERSON. 

sheep,  however  intermingled  with  others*.  Oflfenders  have  not  un- 
frequently  been  recognised  by  the  voicef.  Circumstances  some, 
times  extraordinarily  contribute  to  identification,  by  confining  suspi- 
cion and  consequently  limiting  the  range  of  inquiry  to  a  class  of 
persons  ;  as  in  the  case  mentioned  in  a  former  page,  of  two  persons 
convictod  of  murder,  who  had  created  an  alarm  from  within  the 
house  ;  but,  nevertheless,  suspicion  fell  upon  them  from  the  circum- 
stance that  the  dew  on  the  grass  surrounding  the  house  had  not 
been  disturbed  on  the  morning  of  the  murder,  which  must  have 
been  the  case  had  it  been  committed  by  any  other  than  inmatesij:. 

Identification  is  often  satisfactorily  inferred  from  the  correspond- 
ence of  fragments  of  garments,  or  written  or  printed  papers,  or  other 
articles  found  in  the  possession  of  parties  charged  with  crime,  with 
other  portions  or  fragments  discovered  at  or  near  the  scene  of  crime, 
or  otherwise  related  to  the  corpus  delicti^  ;  or  by  means  of  wounds 
or  marks  inflicted  upon  the  person  of  the  offender.  A  woman  was 
tried  at  Warwick  spring  assizes,  1818,  before  Mr.  Baron  Garrow,  for 
the  crime  of  arson.  The  prisoner  had  been  met  near  the  ricks 
which  were  set  on  fire,  about  two  hours  after  midnight.  A  tinder- 
box  was  found  near  the  spot   containing   some  unburnt  cotton  rag, 

and  a  piece  of  a  woman's  neckerchief  was  found  in  one  of 
[  *96  ]     the  ricks  where  *the  fire   had   been   extinguished.     The 

piece  of  cotton  in  the  tinder-box  was  examined  with  a 
lens,  and  the  witness  deposed  that  it  was  of  the  same  fabric  and 
pattern  as  a  gown  and  some  pieces  of  cotton  print  taken  from  the 
prisoner's  box  at  her  lodgings.  A  half  neckerchief  taken  from  a 
bundle  belonging  to  the  prisoner,  and  found  in  her  lod:.;ing3,  corres- 
ponded with  the  colour,  pattern,  and  fabric  of  the  piece  found  in 
the  rick,  and  it  was  deposed  that  they  had  both  belonged  to  the 
same  square ;  and  from  the  breadth  of  the  hemming,  and  the  dis- 
tance of  the  stitches  on  both  pieces,  as  well  as  from  the  circumstance 
that  both  pieces,  were  hemmed  with  black  sewing  silk  of  the  same 
quality  (whereas  articles  of  that  description  were  generally  sewed 
with  cotton),  the  witness  clearly  inferred  that  they  were  the  work 
of  the  same  person.    The  prisoner  was  capitally  convicted,  but  there 

♦  Rexr.  Oliver,  1  Syme's  Justiciary  Rep.  224. 

t  Rex  V.  Brook,  ante,  p.  93. 

X  Rex  V.  Jefferys  and  Swan,   18  St.  Tr.  1193  ;  and  see  Mascardus  De  Prob.  Con- 

Clusio  CCLXXII. 

§  See  MascarduB  De  Prob.  Concl.  dcccxxxi. 


IDENTIFICATION   OF  PERSON.  73 

being  reason  to  believe  that  she  was  of  unsound  mind,  she  was  re- 
prieved. Evidence  of  this  kind  must  however,  be  admitted  with 
caution.  On  the  trial  of  a  young  woman  for  child  murder,  it  ap- 
peared that  the  body  of  a  newly-born  female  child  Avas  found  in  a 
pond  about  a  hundred  yards  from  her  master's  house,  dressed  in  a 
shirt  and  cap ;  and  a  female  witness  deposed  that  the  stay  or  tie 
which  was  pinned  to  the  cap  and  made  of  spotted  linen,  was  made 
of  the  same  stuff  as  a  cap  found  in  the  prisoner's  box ;  but  a  mer- 
cer declared  that  the  two  pieces  were  not  only  unlike  in  pattern,  but 
different  in  quality*. 

In  a  case  of  burglary  the  thief  had  gained  admittance  to  the 
house  by  means  of  a  penknife,  which  was  broken  in  the  attempt,  and 
part  left  in  the  window-frame  ;  the  broken  knife  was  found  in  the 
pocket  of  the  prisoner,  and  perfectly  corresponded  with  the  frag- 
ment lefty. 

*At  Stafford  summer  assizes,  1835,  a  man  was  convicted  [  *97  ] 
of  an  attempt  to  murder,  by  sending  to  the  prosecutor  on 
the  11th  of  May  preceding,  a  parcel  consisting  of  a  tin  case  which 
contained  several  pounds  of  gunpowder,  so  packed  as  to  explode  by 
the  ignition  of  detonating  powder,  inclosed  between  two  pieces  of 
paper,  connected  with  a  match  fastened  to  the  bottom  and  to  the  lid 
of  the  box.  It  was  a  conclusive  circumstance  against  the  prisoner 
that  underneath  the  outer  covering  of  brown  paper,  in  which  the 
case  and  combustible  matter  had  been  inclosed,  was  found  a  portion 
of  the  Leeds  Intelligencer  of  the  5th  of  July,  1832,  the  remaining 
portion  of  that  identical  paper  having  been  found  in  the  prisoner's 
house. :j:  In  another  case  identification  was  estabUshed  by  the  cor- 
respondence of  the  wadding  of  fire-arms  with  part  of  a  torn  letter 
found  in  the  prisoner's  possession  ;§  and  in  a  case  on  the  Northern 
circuit  where  a  man  had  been  shot  by  a  ball,  the  wadding  of  the 
pistol,  which  stuck  in  the  wound,  was  found  to  be  part  of  a  ballad, 
which  corresponded  with  another  part  found  in  the  pocket  of  the 
prisoner.  II 

William  Heath  and  Elizabeth  Crowder  were  charged  at  Glasgow, 
September  1831,  with  breaking  into  a  bank  in  that  city,  and  steal- 

*  Rex  V.  Bate,  Warwick  autumn  assizes,  1809,  before  Mr.  Justice  Le  Blanc  ;  and 
see  Rex  v.  Webster,  post. 

t  1  Stark,  L.  of  Ev.  103. 

t  Rex  V.  Mountford.  1  Moody's  C.  C.  441. 

§  P.  and  F.  39  ;  and  1  Starkie's  L.  of  Ev.  498. 

II  Bentham's  Jud.  Et.  book  v.  ch.  xv.  256  ;  and  see  Hansard's  Pari.  Deb.  vol.  iii. 
p.  1740  (third  series,)  where  the  case  is  related  bj  Lord  Eldon. 

12 


74  IDENTIFICATION   OF  PERSON. 

ing  $6000.     The  bank  \?as  safely  locked  up  on  the  24th  of  Decem- 
ber, and  it  was  found  to  have  been  broken  into  when  the ,  clerks  re- 
turned on  the  morning  of  the  26th,  the  intervening  day  having  been 
a  holiday.     The  iron  safes  had  all  been  forced  open.     The  male 
prisoner  Heath  had  been  seen  in  Virginia  Street,  more  than  once, 
about  three  weeks  before  the  robbery.     On  Christmas-day 
[  *98  ]     a  woman  extremely  like  the  female  prisoner  rang  at  *the 
bank   door,  and  repeatedly  looked  past  the  servant  who 
opened  the  door  up  the  stairs.     The  prisoners  came  to  Glasgow 
about  six  weeks  before  the  theft,  living  together,  and  left  their  first 
lodgings  about  a  fortnight  before  Christmas  for  others,  in  which  they 
lived  till  Christmas-day,  when  they  finally  left  them.     They  fre- 
quently went  out  carrying  a  box,  which  they  always  brought  back  ; 
and  when  at  home  they  were  often  engaged,  with  the  windows  closed 
in  a  noisy  work  like  breaking  of  iron  with  hammers.     On  the  day  of 
the  theft  they  were  seen  in  Virginia  Street  by  two  witnesses  linger- 
ing about  dui'ing  the  time  of  Divine  service.     Heath,  the  male  pris- 
oner, had  repeatedly  called  at  an  ironmonger's  in  Glasgow  for  some 
weeks  previously  to  obtain  blank  keys,  and  to  get  them  bored  and 
altered  ;  and  that  ironmonger  identified  a  fragment  of  a  key,  found 
in  the  lock  of  one  of  the  safes,  as  what  he  had  made  for  him.     On 
the  dresser  of  the  lodgmg  which  the  prisoners  occupied  in  Glasgow 
were  found  circles,  such  as  would  have  been  produced  by  making 
keys  similar  to  one  of  which  a  fragment  was  found  in  the  safe  of  the 
bank  which  was  robbed  ;  and  the  catches  of  a  vice  found  in  Crow- 
der's  house  in  London  coincided  with  the  markings  on  a  board  in 
Heath's  lodgings  in  Glasgow.     On  the  day  after  the  theft  the  pris- 
oner Heath  set  ofi"  in  the  coach  to  Edinburgh  under  a  feigned  name, 
and  was  traced  in  the  mail  from  Edinburgh  to  London.  On  the  31st 
of  December  he  was  found  at  a  jeweller's  shop  in  Dover  exchanging 
two  Scotch  notes  for  French  gold ;  and  to  the  mate  of  the  steam- 
boat between  Dover  and  Calais,  a  person  resembling  the  prisoner 
Heath  tendered  a  twenty-pound  Scotch  note.     In  their  declarations 
both  prisoner  refused  to  answer  any  questions.     Upon  this  evidence 
Heath  was  convicted  and  executed,  and  Crowder  escaped,  by  a  ver- 
dict of  '  Not  proven.'* 
[  *99  ]         *Gomez  Palayo,  a  Spaniard,  was  tried  at  the  Liverpool 
quarter  sessions  on  the  28th  of  October  1836,  for  having 
occasioned  a  grievous  injury  to  an  officer  of  the  post-office,  by  means 

*  Alison's  Prjnc.  of  the  C.  L.  of  ScoUand,  p,  318. 


IDENTIFICATION   OF   PERSON.  75 

of  several  packets  containing  fulminating  powder,  put  by  him  into 
the  post-office,  one  of  which  exploded  in  the  act  of  stamping.  The 
letters,  which  were  in  Spanish,  and  one  of  them  subscribed  with  the 
prisoner's  name,  were  addressed  to  persons  at  Havannah  and  Ma- 
tanzas,  who  appeared  to  be  the  objects  of  the  writer's  malignant  in- 
tention. There  was  no  proof  that  the  letters  were  in  the  prisoner's 
handwriting,  but  he  was  proved  to  have  landed  at  Liverpool  on  the 
20th  of  September,  and  to  have  put  several  letters  into  the  post- 
office  on  the  evening  of  the  22nd  of  that  month,  the  explosion  hav- 
ing occurred  on  the  24th  ;  and  there  was  found  upon  his  person  a 
seal  which  corresponded  with  the  impreesion  upon  the  letters,  which 
circumstance  (though  there  were  other  strong  facts)  was  justly  con- 
sidered as  conclusive  of  the  prisoner's  guilt,  and  he  was  accordingly 
convicted  and  sentenced  to  two  years'  imprisonment. 

Circumstances  like  those  which  have  been  enumerated  have  al- 
ways been  considered  to  afford  strong  ^;nma/aae  ground  of  adverse 
presumption,  unless  satisfactorily  explained  and  accounted  for.* 
Nevertheless  the  effect  of  such  circumstances  may,  like  all  other 
presumptions,  be  repelled  or  neutralized  ;  and  there  have  been  cases 
in  which  similar  circumstances  of  presumption,  though  they  have 
appeared  to  be  conclusive,  have  turned  out  to  be  fallacious.! 

In  like  manner  the  impressions  of  shoes,  or  other  articles  of 
apparel,  or  of  nails,  patches,  abrasions  or  other  peculiarities  there- 
in, in  the  soil  or  clay,  or  snow,  at  or  near  the  scene  of  crime, 
and  discovered  recently  after  its  commission,  fre- 
*quently  lead  to  the  identification  and  conviction  of  the  [  *100  ] 
guilty  parties. :[:  The  presumption  founded  on  these  cir- 
cumstances is  appealed  to  by  all  mankind  in  all  ages,  and  in  in- 
quiries of  every  kind,  and  it  is  so  obviously  the  dictate  of  reason,  if 
not  of  instinct,  that  it  would  be  superfluous  to  dwell  upon  its  impor- 
tance. The  following  remarkable  cases  illustrate  the  pertinency  and 
weight  of  such  mechanical  facts,  especially  when  connected  with 
other  concurring  circumstances  leading  to  the  same  result. 

At  Warwick  spring  assizes,  1816,  Isaac  Brindley  was  tried  for 
the  murder  of  Ann  Smith,  a  female  fellow-servant  at  a  farm-house. 
The  deceased,  who  was  about  to  go  into  another  situation,  asked  the 
prisoner  to  carry  a  box  for  her  to  the  gardener's  house,  about  a 

*  Mascardus,  Concl.  Dcccxxx.i.  pi.  10. 
t  Kex  V.  Looker,  post. 

t  Menochius  Ce  Prses.  lib.  v.  prscs.  31.  Mascardus,  Concl,  cccxx.pl.  11.  Traite 
de  la  Preuve,  par  M ittermaier,  (traduit  par  Alexandre,)  ch.  57. 


76  IDENTIFICATION   OP   PERSON. 

quarter  of  a  mile  distant.     A  little  before  seven  in  the  evening  the 
deceased  went  on  an  errand  to  take  some  barm  to  a  neighbouring 
house,  but  it  not  being  wanted  she  set  out  to  bring  it  back.     Soon 
after  the  deceased  set  out  from  her  master's  house,  the  prisoner 
followed  her  carrying  the  box,  but  he  did  not  reach  the  gardener's 
house  until  after  eight.     The  time  was  fixed  from  the  circumstance 
of  the  gardener's  clock  having  stopped  when  wound  up  soon  after 
the  prisoner  left  the  house.     The  deceased  did  not  return  home,  and 
on  the  following  morning  she  was  found  drowned  in  a  pit  near  a  foot- 
path leading  from  the  gardener's  house  to  her  master's  ;  and  one  of 
her  shoes  and  the  jug  in  which  she  had  carried  the  barm  were  found 
near  the  pit.     Some  barm  was  spilt  near  the  spot,  and  there  were 
marks  of  much  trampling ;  and  there  were  also  some  wheat  chaff 
and  grains  of  wheat  about,  which  were  material  facts,  the  prisoner 
having  been  engaged  the  preceding  day  in  threshing  wheat.     The 
prisoner  gave  a  false  account  of  himself  during  his  tem- 
[  *101  ]     porary  *absence  on  the  preceding  evening.     Impressions 
were  found  in  the  soil,  which  was  stiff  and  retentive,  of 
the  knee  of  a  man  who  had  worn  breeches  made  of  striped  corduroy, 
and  patched  with  the  same  material,  but  the   patch  was  not  set  on 
straight,  the  ribs  of  the  patch  meeting  the  hollows  of  the  garment 
into  which  it  had  been  inserted  ;  which  circumstances    exactly  cor- 
responded with  the  prisoner's  dress  ;  he  was  convicted  and  executed. 
William  Beards  was  tried  before  Mr.  Sergeant  Atcherly  at  Staf- 
ford summer  assizes,  1844,  for  the  murder  of  an  elderly  woman  who 
lived  as  housekeeper  with  Mr.  Crowther  at  Wednesbury.     The  de- 
ceased, her  master,  and  a  male  servant  were  the  only  inmates  of  the 
house.     Mr.  Crowther  went  from  home  on  Saturday  morning  the 
16th  of  March,  about  half  past  nine  o'clock,  as  was  his  habit  on  that 
day  of  the  week,  leaving  the  deceased  in  the  house  alone.     Upon 
his  return,  about  a  quarter  before  two,  he  found  the  dead  body  of 
his  housekeeper  in  the  brewhouse,  her  throat  having  been  cut  and  the 
house  robbed.     The  murder  had  probably  been  committed  about  a 
quarter  past  ten  o'clock,  as  the  butcher  called  at  that  time  and  had 
been  unable  to  obtain  admittance,  and  about  the  same  time  a  scream 
was  heard.     Traces  were  found  of  a  man's  right  and  left  footsteps 
leading  from  a  stable  in  a  small  plantation  near  the  front  of  the 
house,  from  which  any  person  leaving  the  house  by  the  front  door 
could  be  seen  ;  and  similar  footsteps  were  found  at  the  back  of  the 
house  leading  from  thence  across  a  ploughed  field  for  a  considerable 
distance  in  a  sequestered  direction,  until  they  reached  a  canal  bank, 


IDENTinCATION   OP  PERSON.  77 

where  they  were  lost  in  the  hard  ground.     From  the  distance  be- 
tween the  steps  at  the  back  of  the  house  and  in  the  ploughed  field, 
the  person  whose  footsteps  they  were  must  have  been  running ;  the 
impressions  were  those  of  right  and  left  boots  and  were  very  dis- 
tinct, there  having  been  snow  and  rain,  and  the  ground 
being  *very  moist.     The  right  footprints  had  the  mark  of     [  *102  ] 
a  tip  round  the  heel ;  the  impressions  of  the  left  foot  had 
a  patch  fastened  to  the  sole  with  nails  different  in  size  from  those  on 
the  sole  itself;  and  altogether  there  were  four  different  sorts  of  nails 
on  the  patch  and  soles,  and  in  some  places  the  nails  were  missing. 
Suspicion  fell  upon  the  prisoner,  who  had  formerly  lived  as  fellow 
servant  with  the  deceased,  and  had  been  seen  by  several  persons  in 
the  vicinity  of  the  house  a  little  before  ten  o'clock  on  the  morning 
of  the  murder.     Upon  his  apprehension  on  the  following  morning, 
his  boots,  trowsers,  shirt,  and   other  garments  were  found  to  be 
stained  with  blood,  and  the  trowsers  had  been  rubbed  or  scraped,  as 
if  to  obliterate  stains.     The  prisoner  wore  right  and  lefc  boots,  which 
were  carefully  compared  Avith  the  footprints ;  first  by  making  im- 
prcssions  of  the  soles  in  the  soil  about  six  inches  from  the  original 
footmarks  ;  and  they  were  found  exactly  to  correspond  as  to  the 
patch,  the  tip  and  the  number,  shape,  sizes  and  arrangement  of  the 
nails.     The  boots  were  then  placed  lightly  upon  the  original  impres- 
sions so  as  not'to  vary  them,  but  merely  to  ascertain  if  they  fitted  ; 
here  again  the  correspondence  was  exact.     There  could  therefore  be 
no  doubt  that  the  impressions  of  all  these  footsteps  had  been  made 
by  the  prisoner's  boots.     The  prisoner  was  seen  about  a  quarter  be- 
fore eleven  on  the  morning  of  the  murder  vi'xih.  something  bulky  un- 
der his  coat,  near  the  place  where  the  footsteps  were  lost  on  the 
hard  ground,  and  proceeding  thence  towards  the  town  of  Wednes- 
bury.     At  about  eleven  o'clock  he  called  at  the  Pack  Horse  in  that 
place,  not  far' from  Mr.  Crowther's  house,  where  he  took  something 
to  drink  and  immediately  left.     At  a  little  after  twelve  the  prisoner 
called  at  another  public  house,  which  was  also  near  to  Mr.  Crowther's, 
where  he  staid  some  time  smoking  and  drinking.     In  the  interval 
between  the  times  when  the  prisoner  had  called  at  these 
public  houses,  ho  was  seen  at  some  distance  "from  them,     [  *103  ] 
near  an  old  whimsey  ;  and  he  was  subsequently  seen  re- 
turning in  the  opposito  direction  towards  Wednesbury.     Five  days 
afterwards,  upon  a  further  search,  the  same  footprints  were  discov- 
ered on  a  footpath  leading  in  a  direction  from  the  Pack  Horse  tow- 
ards the  whimsey,  where  two  bricks  appeared  to  have  been  placed  to 


78  IDENTIFICATION   OF   PERSON. 

stand  upon,  and  close  to  which  -was  found  an  impression  of  a  right 
foot  corresponding  -with  the  impression  which  had  been  before  discov- 
ered ;  and  in  the  flue  was  found  concealed  a  handkerchief  in  which 
were  tied  up  a  pair  of  trowsers  and  waistcoat,  which  had  belonged  to 
Mr.  Crowther,  and  had  been  stolen  from  his  house.  The  prisoner 
must  have  availed  himself  of  the  interval  between  the  times  when 
he  was  seen  at  the  two  public  houses,  to  secrete  the  stolen  garments 
in  the  whimsey,  and  thus  to  divest  himself  of  the  bulky  articles 
which  had  been  observed  under  his  coat  on  his  arrival  at  the  Pack 
Horse.  No  attempt  was  made  to  show  that  the  prisoner  was  else- 
where at  the  time  of  the  murder  ;  but  it  was  proved  that  about  a 
week  before,  while  assisting  to  hang  up  a  dead  pig,  some  blood  had 
fallen  upon  his  coat.  It  was  alleged,  but  not  proved,  that  it  was 
common  for  excavators  (like  the  prisoner)  to  have  a  patch  put  upon 
the  left  boot  with  extra  nails,  to  prevent  the  boot  wearing  out  by  the 
use  of  the  spade,  and  that  great  numbers  of  similar  boots  were  sup- 
plied by  the  contractors  to  their  workmen,  made  from  the  same  last, 
and  by  the  same  person  who  put  on  the  nails  in  the  same  form.  The 
jury  after  deliberating  several  hours  found  the  prisoner  guilty,  and 
he  afterwards  made  a  full  confession,  and  was  executed  pursuant  to 
his  sentence.* 

To  guard  against  error,  it  is  manifest  that  the  recency  of  the  dis- 
covery and  comparison  of  the  impressions,  relatively  to 
[  *104  ]  the  time  of  the  occurrence  of  the  corpus  delicti,  *and  be- 
fore other  persons  may  have  resorted  to  the  spot,  is  of  the 
highest  importance.  So,  the  accuracy  of  the  comparison  is  obviously 
all  important,  and  therefore  as  a  further  means  of  guarding  against 
mistake,  it  must  be  shewn  that  the  shoes  were  compared  with  the 
footmarks  before  they  were  put  on  them  ;t  and  where  the  compari- 
son had  not  been  previously  made,  Mr.  Justice  Park  desired  the  jury 
to  reject  the  whole  inquiry  relating  to  the  identification  by  shoe- 
marks.  J,  Nor  must  it  be  overlooked,  that,  even  where  the  identity 
of  the  footmarks  is  established  beyond  all  doubt,  they  may  have 
been  fabricated  with  the  intention  of  diverting  suspicion  from  the 
real  offender,  and  fixing  it  upon  an  innocent  party  ;§  and  that  in 

*  For  other  cases  of  this  kind  see  Rex  y.  Richardson,  and  Rex  r.  Smith  and  others, 
post. 

t  Rex  V.  Heaton,  I  Lewin's  C.  C  116. 

J  Res  V.  Shaw,  ib. 

§  See  the  remarkable  case;of  Francois  Mayenc,  Gabriel,  ut  supra,  403,  and  The  The- 
ory of  Presumptive  Proof,  App.  102. 


IDENTIFICATION   OF   ARTICLES   OF  PROPERTY.  79 

other  respects  this  kind  of  evidence  may  lead  to  erroneous  interpre- 
tation and  inference.* 


SECTION    2. 

IDENTIFICATION   OF  ARTICLES   OF  PROPERTY. 

The  identification  of  articles  of  property,  like  that  of  the  human 
person,  is  capable  of  being  established  by  means  of  numberless  cir- 
cumstances which  it  is  not  possible  to  classify  or  enumerate.  Most 
of  the  cases  "of  identification  which  have  been  enumerated  in  the  pre- 
ceding section,  are  in  fact  cases  of  identification  of  articles  of  prop- 
erty, applied  inferentially  to  the  establishment  of  personal  identity, 
and  sufficiently  illustrate  the  difficulties  which  attend  investigations 
of  this  kind.  It  is  obviously  of  the  greatest  importance,  in  all  cases 
where  witnesses  testify  to  questions  of  identity,  to  sift  with  extreme 
rigour  the  causa  seientice.  The  following  cases,  as  well 
as  others  which  have  been  *already  mentioned,  show  how  [  *105  ] 
liable  even  well  intentioned  witnesses,  who  speak  to  facts 
of  this  particular  kind  are  to  error  and  misconception. 

At  the  spring  assizes,  at  Bury  St.  Edmunds,  a  respectable  farmer, 
occupying  1200  acres  of  land,  was  tried  for  a  burglary  and  stealing 
a  variety  of  articles.  Amongst  the  articles  stolen  were  a  pair  of 
sheets  and  a  cask,  which  were  alleged  to  have  been  shortly  after  the 
theft  found  in  the  possession  of  the  prisoner,  and  were  positively 
sworn  to  by  the  witnesses  for  the  prosecution  to  be  those  which  had 
been  stolen.  The  sheets  were  identified  by  a  particular  stain,  and 
the  cask  by  the  mark  "  P.  C.  84."  inclosed  in  a  circle  at  one  end 
of  it.  On  the  other  hand,  a  number  of  witnesses  swore  to  the  sheets 
being  the  prisoner's,  by  the  same  mark  by  which  they  had  been 
identified  by  the  witnesses  on  the  other  side  as  being  the  prosecu- 
tor's. With  respect  to  the  cask,  it  was  proved  by  numerous  wit- 
nesses, whose  respectability  left  no  doubt  of  the  truth  of  their  testi- 
mony, that  the  prisoner  w^as  in  the  habit  of  using  cranberries  in  his 
establishment,  and  that  they  came  in  casks,  of  which  the  cask  in 
question  was  one.  In  addition  to  this,  it  was  proved  that  the  pri- 
soner purchased  his  cranberries  from  a  tradesman  in  Norwich,  whose 
casks  were  all  marked  "  P.  C.  84."  inclosed  in  a  circle,  precisely 
as   the   prisoner's  were,  the  letters  P.  C.  being  the  initials  of  his 

W  *  Rex  V.  Thornton,  post. 


80  IDENTIFICATION   OF   ARTICLES   OP  PROPERTY. 

name,  and  that  the  cask  in  question  was  one  of  them.  In  summing 
up,  the  learned  judge  remarked,  that  this  was  one  of  the  most  extra- 
ordinary cases  ever  tried,  and  that  it  certainly  appeared  that  the 
witnesses  for  the  prosecution  were  mistaken.  The  prisoner  was  ac- 
quitted*. 

A  man  was  tried  in  Scotland  for  housebreaking  and  theft.  The 
girl  whose  chest  had  been  broken  open,  and  whose  clothes 
[  *106  ]  had  been  carried  off,  swore  to  the  only  "article  found  in 
the  prisoner's  possession,  and  produced,  namely,  a  white 
gown,  as  being  her  property.  She  had  previously  described  the 
colour,  quality  and  fashion  of  the  gown,  and  they  all  seemed  to  cor- 
respond with  the  article  produced.  The  housebreaking  being  clear- 
ly proved,  and  the  goods,  as  it  was  thought,  clearly  traced,  the  case 
was  aboiit  to  be  closed  by  the  prosecutor,  when  it  occurred  to  one  of 
the  jury  to  cause  the  girl  to  put  on  the  gown.  This  appeared  rather 
a  whimsical  proposal,  but  it  was  agreed  to  by  the  court;  when,  to 
the  surprise  of  every  one  present,  it  turned  out  that  the  gown  which 
the  girl  had  sworn  to  as  belonging  to  her, — which  corresponded  with 
her  description,  and  which  she  said  she  had  worn  only  a  short  time 
before, — would  not  fit  her  person.  She  then  examined  it  more  mi- 
nutely, and  at  length  said  it  was  not  her  gown,  though  almost  in 
every  respect  resembling  it.  The  prisoner  was,  of  course,  acquit- 
ted; and  it  turned  out  afterwards  that  the  gown  produced  belonged 
to  another  woman,  whose  house  had  been  broken  into  about  the  same 
period,  by  the  same  person,  bat  of  which  no  evidence  had  at  that 
time  been  producedf . 

A  few   years   ago  a  youth  was  convicted  at  Stafford  assizes,  of 
stealing  a  pocket-book  containing  a  five-pound  note,  under  very  ex- 
traordinary circumstances.     The  prosecutrix  left  home  to  go  to  mar- 
ket in  a  neighbouring  town,  and  having   stooped   down  to  look  at 
some   vegetables  exposed  to  sale,  she  felt  a  hand  resting  upon  her 
shoulder,  which  on  rising  up  she  found  to  be  the  prisoner's.     Hav- 
ing afterwards  purchased  some  articles  at  a  grocer's  shop,  on  search- 
ing for  her  pocket-book  in  order  to  pay  for  them  she  found  it  gone. 
Her    suspicion   fell  upon  the  prisoner,  who  was   apprehended,  and 
upon  his  person  was  found  a  black  pocket-book,  which  she  identified 
as  that  which   she  had  lost,  but  it  contained  no  money. 
[  *107  ]     Several  witnesses  proved  that  the  ^prisoner  had  long  pos- 
sessed the   pocket-book ;  but  some  discrepancy  in   their 

*  A.  R.  1830,  p.  50  j  the  report  was  supplied  by  a  barrister  of  eminence, 
t  Rex  V.  Webster,  Burnett's  C  L.  of  Scot.  p.  558.    19  St.  Tr.  494, 


IDENTIFICATION    OF   ARTICLES    OF   PROPERTY.  81 

evidence  in  other  respects  led  to  the  suspicion  that  the  defence  was  a 
fabricated  one,  and  the  jury  returned  a  verdict  of  guilty,  and  the 
prisoner  was  sentenced  to  be  transported.  During  the  continuance 
of  the  assizes,  two  men  who  were  mowing  a  field  of  oats  through 
which  the  path  lay  by  which  the  prosecutrix  had  gone  to  market, 
found  in  the  oats  close  to  the  path  a  black  pocket-book  containing  a 
five  pound  note.  The  men  took  the  money  and  pocket-book  to  the 
prosecutrix,  ayIio  immediately  recognised  them,  and  the  committing 
magistrate  despatched  a  messenger  with  the  articles  found,  and  her 
affidavit  of  identity  to  the  judge  at  the  assize  town.  The  prosecu- 
trix must  have  dropped  her  pocket-book,  or  drawn  it  from  her  pocket 
with  her  pocket  handkerchief,  and  had  clearly  been  mistaken  as  to 
the  identity  of  the  pocket-book  produced  upon  the  trial*.. 

It  is  not,  however,  indispensably  necessary  that  the  identification 
of  stolen  property  should  be  invariably  established  by  positive  evi- 
dence.  In  many  cases  identification  by  positive  evidence  is  imprac- 
ticable ;  and  yet  the  circumstances  may  render  it  impossible  to  doubt 
that  the  property  has  been  stolen,  or  to  account  for  the  possession  of 
it  by  the  party  accused  upon  any  reasonable  hypothesis  consistent 
with  his  innocence  ;  as  in  the  case  of  labourers  employed  in  docks, 
warehouses,  or  other  such  establishments,  found  in  possession  of  corn, 
sugar,  tobacco,  or  other  like  articles  concealed  about  the  person,  or 
clandestinely  disposed  of  under  pregnant  circumstances  of  suspicion. 
In  such  cases  the  similarity  or  general  resemblance  of  the  article 
stolen  with  that  found,  is  sufficient! .  The  following  is  a  remarkabb 
case  of  this  kind. 

*At  Glasgow  spring  circuit,  1828,  two  men  were  tried 
for  stealing  a  quantity  of  soap  from  a  soap  manufactory  [  *108  ] 
near  that  city,  which  was  broken  into  on  a  Saturday  night 
by  boring  a  hole  in  the  wall,  and  120  lbs.  of  yellow  soap  abstracted. 
On  the  same  night,  at  eleven  o'clock,  the  prisoners  were  met  by  a 
watchman  near  the  centre  of  the  city,  one  of  them  having  40  lbs. 
of  yellow  soap  on  his  back,  and  the  other  with  his  clothes  greased 
all  over  with  the  same  substance.  The  prisoners,  on  seeing  the 
watchman,  attempted  to  escape,  but  they  were  seized.  The  OAvner 
declared  that  the  soap  was  exactly  of  the  same  kind,  size  and  shape, 
with  that  abstracted  from  his  manufactory  ;  but,  as  it  had  no  private 
mark,  it  could  not  be  identified  more  distinctly.     One  of  the  prison- 

*  Kex  V.  Carter,  coram  Mr.  Baron  Garrow. 
.    t  2  East's  P.  C.  637.    2  RnsseU  oa  Crimea,  (by  Greavei),  107.    Rm  u.  White,  R. 
'and  R. 508. 

13 


82  PROOF   OF  HANDWRITING. 

ers  had  formerly  been  a  servant  about  the  premises,  and  both  in 
their  declarations  alleged  that  they  got  the  soap  in  a  public  house 
from  a  man  -whom  they  did  not  know.  They  were  convicted  and 
transported  for  seven  years*. 


SECTION    3. 


PROOF   OF  HANDWRITING. 


The  usual  mode  of  proving  handwriting  is,  by  the  direct  testimo- 
ny of  some  witness,  who  has  either  seen  the  party  write,  or  ac- 
quired a  knowledge  of  his  handwriting  from  having  corresponded 
with  him  and  had  transactions  in  business  with  him,  on  the  faith  that 
letters  purporting  to  have  been  written  or  signed  by  him  were  genu- 
ine. In  either  case,  the  witness  is  supposed  to  have  received  into 
his  mind  an  impression  of  the  general  character  of  the  handwriting 
of  the  party,  impressed  on  it  as  the  involuntary  and  unconscious  re- 
sult of  constitution,  habit,  or  other  permanent  cause, 
[  *109  ]  and  which  is  therefore  itself  permanent ;  *and  he  is  call- 
ed  on  to  speak  to  the  writing  in  question  by  a  reference 
to  the  standard  so  formed  in  his  mind.f 

It  is  necessary  to  recall  these  leading  principles  of  proof  of  hand- 
writing by  direct  evidence,  as  introductory  to  the  consideration  of 
the  various  methods  of  proof  by  indirect  evidence. 

Evidence  of  similitude  of  handwriting  by  the  comparison  of  con- 
troverted writing  with  the  admitted  or  proved  writing  of  the  party, 
made  by  a  witness  who  has  never  seen  the  party  write,  or  has  any 
knowledge  of  his  handwriting,  and  who  arrives  at  the  inference  that 
it  is  his  handwriting  because  it  is  like  some  other  which  is  so,|  is  a 
mode  of  proof  which  has  been  much  lauded  by  writers  on  the  civil 
law,  and  is  commonly  admitted  in  many  countries  ;  but  in  that  case 
the  comparison  is  made  by  professional  experts  appointed  by  the 
Court  or  agreed  upon  by  the  parties,  and  under  many  restrictions 
for  securing  the  genuineness  of  the  writings  which  are  to  form  the 
standard  of  comparison. 

Such  evidence  is  in  general  inadmi^ible  in  this  country ;  and  the 

•  Rex  r.  M'Kechnie  and  Tolmei,  Alison's  Princ. ,  ui  supra,  322. 

t  Per  Coleridge,  J.  in  Doe  d.  Mudd  v.  Suckermore,  5  A.  and  E.  705. 

t  Bcnth.  Jud.  Ev.  b.  iii.  ch.  T.    Rex  v.  De  la  Motte,  21  St.  Tr^  810.  g 


PROOF   OF   HANDWRITING.  83 

only  admitted  exceptions  are,  where  the  writing  acknowledged  to  be 
genuine  is  already  in  evidence  in  the  cause,  or  the  disputed  writing 
is  an  ancient  writing.*  In  these  excepted  cases,  the  evidence  is 
admitted,  it  is  said,  of  necessity, — in  the  former  case  because  it  is 
not  possible  to  prevent  the  jury  from  making  such  comparison,  and 
therefore  it  is  best,  as  was  remarked  by  Lord  Denman,f  for  the 
Court  to  enter  with  the  jury  into  that  inquiry,  and  do  the  best  it 
can  under  circumstances  which  cannot  be  helped, — in  the 
•latter  because  from  the  lapse  of  time  no  living  person  [  *110  ] 
can  have  any  knowledge  of  the  handwriting  from  his  own 
observation,:!:  and  because  in  ancient  documents  it  often  becomes  a 
puro  question  of  skill,  the  character  of  the  handwriting  varying  with 
the  age,  and  the  discrimination  of  it  being  materially  assisted  by  an- 
tiquarian researches.  § 

The  evidence  of  persons  accustomed  to  the  critical  examination  of 
handwriting,  as  engravers  and  inspectors  of  franks,  who,  without  any 
previous  knowledge  of  a  person's  handwriting,  profess  to  be  able  to 
determine  by  comparison  of  the  disputed  with  the  genuine  writing, 
whether  a  signature  be  genuine  or  not,  and  also  from  the  general 
character  and  appearance  of  writing,  whether  it  be  written  in  a  nat- 
ural or  feigned  hand,  appears  to  have  been  formerly  considered  as 
another  exception  to  the  rule  ;|1  but  such  evidence  is  now  justly 
considered  to  be  of  so  little  weight,  and  attempts  to  introduce  it  are 
so  much  discountenanced,  that,  in  the  language  of  Lord  Denman,^ 
this  chapter  may  be  considered  as  expunged  from  the  book  of  evi- 
dence.** 

An  attempt  has  lately  been  made  to  introduce  a  new  mode  of 
proof,  by  satisfying  the  witness  by  some  information  or  evidence, 
that  certain  papers  are  in  the  handwriting  of  the  prrty,  and  then 
desiring  him  to  study  those  papers,  so  as  to  acquire  a  knowledge  of 

•  Allport  V.  Meek,  4  C.  and  P.  267.  Bromage  v.  Rice,  7  ih.  548.  Waddington  v. 
Cousins,  ib.  595.  Griffith  v,  Williams,  I  C.  and  J.  47.  Doe  d.  Perry  r,  Newton,  1 
N.  and  P.  1,  and  5  A.  and  E.  514.  Solita  v.  Yarrow,  1  M.  and  R.  133.  Griffita  v. 
Ivery,  1 1  A,  and  E.  222. 

t  In  Doe  d.  Perry  r.  Newton,  ut  supra. 

X  Per  Mr.  J.  Patteson  in  Doe  d.  M   dd  v,  Sackermore,  ut  supra. 

^  Per  Coleridge,  J.  ib, 

II  Goodtitle  r.  Revett,  4  T.  R.  49  •  Rex  v.  Cator,  4  Esp.  117.  Rex  v.  Johnson, 
29  St.Tr.  81. 

IT  Doe  d,  Mudd  v.  Suckermore,  ut  supra. 

*♦  Gurney  v.  Langlands,  5  B.  and  Aid,  330.  Constable  v.  Steibel,  1  Hagg.  56. 
Young  u.  Brown,  t&.  569,  Fitzwalter  Peerage,  10  C.  and  F.  193.  Tracy  Peerage 
t6. 154. 


84  PROOF   OF   HANDWRITING. 

the  handwriting,  and  fix  an  exemplar  in  his  mind,  and  afterwards 
putting  into  his  hand  the  writing  in  question  and  asking 
[  *111  ]  his  belief  respecting  it ;  or  by  merely  putting  certain  pa- 
pers into  the  witness's  hand,  without  telling  him  who 
wrote  them,  and  desiring  him  to  study  them,  and  acquire  a  know- 
ledge of  the  handwriting,  and  afterwards  showing  him  the  writing  in 
question  and  asking  his  belief,  whether  they  are  written  by  the  same 
person,  and  calling  evidence  to  prove  to  the  jury  that  the  former 
are  the  handwriting  of  the  party.*  The  question  in  the  cause  was 
the  due  execution  of  a  will.  On  the  first  day  of  the  trial  the  defend- 
ant called  an  attesting  witness,  who  swore  that  the  attestation  was 
his.  On  his  cross-examination,  two  signatures  to  depositions  respect- 
ing the  same  will  in  an  ecclesiastical  court,  and  several  other  signa- 
tures, were  shown  to  him  (none  of  them  being  in  evidence  for  any 
other  purpose  of  the  cause,)  and  he  stated  that  he  believed  them  to 
be  his.  On  the  following  day  the  plaintiff  tendered  a  Avitness  to 
prove  the  attestation  not  to  be  genuine.  The  witness  was  a  Bank- 
inspector,  who  had  no  knowledge  of  the  handwriting  of  the  supposed 
attesting  witness,  except  from  having  previous  to  the  trial,  and  again 
between  the  two  days,  examined  the  signatures  admitted  by  the  at- 
testing witness,  which  admission  he  had  heard  made  in  court.  Mr. 
Justice  Vaughan  rejected  the  evidence  ;  and  upon  a  motion  for  a 
new  trial,  on  the  ground  of  its  improper  rejection,  the  Judges  of  the 
Court  of  Queen's  Bench  were  equally  divided  in  opinion,  f 

Evidence  to  handwriting  is  subject  to  many  sources  of  fallacy  and 
error,  among  which  may  be  enumerated  tuition  by  the  same  recep- 
tor, employment  with  other  persons  in  the  same  place  of  business,  as 
well  as  designed  imitation,  all  of  which  are  frequently  causes  of 
great  similarity  in  writing.  Men  in  certain  businesses 
[  *112  ]  and  professions  *sometimes  adopt  peculiarities  of  charac- 
ter, though  less  frequently  than  formerly  ;  and  there  are 
characteristic  peculiarities  indicative  of  age,  infirmity  and  sex.  J 

Handwriting  is  sometimes  most  successfully  imitated.  On  a  trial 
for  forgery  of  bank-notes,  a  banker's  clerk  whose  name  was  on  one 
of  the  notes  swore  distinctly  that  it  was  his  handwriting,  while  he 
spoke  hesitatingly  with  respect  to  his  genuine  subscription.  §     Lord 

*  Per  Mr,  Justice  Patteson  in  Doe  dem,  Mudd  v.  Suckermore,  5  A.  and  E,  703. 
t  See  also  Griflfits  v,  Ivery,  11  A,  and  E,  322.    Hughes  v,  Eogers,  8  M.  and  W. 
123.     Young  V.  Horner,  2  M,  and  E.  ."jTS,  and  1  C.  and  K.  51. 
}  See  Kex  v.  Johnson,  29  St.  Tr,  81. 
§  Rex  V.  Carsewell,  Barnett's  C.  L.  of  Scotl.  602.  ^^ 


PROOF   OF  HANDWRITING.  85 

Eldon  mentioned  a  very  remarkable  instance  of  the  uncertainty  of 
this  kind  of  evidence.  A  deed  was  produced  at  a  trial  on  which 
much  doubt  was  thrown  as  a  discreditable  transaction.  The  sohcitor 
was  a  very  respectable  man,  and  was  confident  in  the  character  of 
his  attesting  witnesses.  One  of  them  purported  to  be  Lord  Eldon 
himself,  and  the  solicitor,  who  had  referred  to  his  signature  to  plead- 
ings, had  no  doubt  of  its  authenticity,  yet  Lord  Eldon  declared  that 
he  had  never  attested  a  deed  in  his  life.* 

In  a  case  in  Doctors'  Commons  the  learned  judge  repudiated  the 
common  objection  of  painting  or  touching,  as  a  reason  for  inferring 
fraud,  saying  that  there  could  scarcely  be  a  less  certain  criterion, 
and  peremptorily  dechned  the  use  of  a  glass  of  high  powers,  said  to 
have  been  used  by  the  professional  witnesses,  observing,  in  substance, 
that  glasses  of  high  powers,  however  fitly  applied  to  the  inspection 
of  natural  subjects,  rather  tended  to  distort  and  misrepresent  than 
to  place  such  objects  in  their  true  light ;  especially  when  used  (their 
ordinary  application  in  the  hands  of  prejudiced  persons)  to  confirm 
some  theory  or  preconceived  opinion. f  But  it  is  conceived  that  this 
ruling  of  the  learned  judge  must  be  ascribed  to  some 
peculiarity  of  jurisdiction  or  practice  connected  with  *the  [  *113  ] 
ecclesiastical  courts,  as  it  is  the  daily  practice  of  courts 
of  Common  Law  to  admit  the  artificial  aid  of  glasses  and  lamps. 
On  a  trial  for  murder  an  optician  showed  satisfactorily  to  the  jury 
the  name  of  the  prisoner,  scratched  in  rude  letters,  on  the  handle 
of  a  razor  found  in  a  wood  near  the  scene  of  the  crime.* 

The  following  extract  from  a  learned  judgment  of  Sir  John 
Nicholl  embodies  many  instructive  observations  upon  this  kind  of  evi- 
dence :  "  This  Court  has  often  had  occasion  to  observe,  that  evidence 
to  handwriting  is  at  best,  in  its  own  nature,  very  inconclusive  : 
affirmative,  from  the  exactness  with  -which  handwriting  may  be  imi- 
tated ;  and  negative,  from  the  dissimilarity  which  is  often  discovera- 
ble in  the  handwriting  of  the  same  person  under  dififerent  circum- 
stances. Without  knowing  very  precisely  the  state  and  condition  of 
the  writer  at  the  time,  and  exercising  a  very  discriminating  judg- 
ment upon  these,  persons  deposing,  especially,  to  a  mere  signature  not 
being  that  of  such  or  such  a  person,  from  its  dissimilarity — however  as- 
certained or  supposed  to  be — to  his  usual  handwriting,  are  so  likely 
to  err,  that  negative  evidence  to  a  mere  subscription,  or  signature, 

*  Eagleton  v.  Kingston,  8  Ves.  473. 
^     t  Robson  V.  Rocke,  2  Addamg,  79. 
f     %  Reg.  V.  Sawyer,  Maidstone  Spring  Assizes,  1839,  coram  Mr.  Justice  Litllednle. 


86  VERIFICATION    OP   TIME   AND    DATES. 

can  seldom,  if  ever,  under  ordinary  circumstances,  avail  in  proof, 
against  the  final  authenticity  of  the  instrument  to  which  that  sub- 
scription, or  signature,  is  attached.  But  such  evidence  is  peculiarly 
fallacious,  where  the  dissimilarity  relied  upon  is  not  that  of  general 
character,  but  merely  particular  letters  ;  for  the  slightest  peculiari- 
ties of  circumstance  or  position, — as,  for  instance,  the  writer  sitting 
up  or  reclining,  or  the  paper  being  placed  upon  a  harder  or  softer 
substance,  or  on  a  plane  more  or  less  inclined, — nay,  the  materials, 

as  pen,  ink,  &c.  being  different  at  different  times, — are 
[  *114  ]     amply  sujficient  to  account  *for  the  same  letters  being 

made  variously  at  the  different  times  by  the  same  indi- 
vidual. Independent  however  of  anything  of  this  sort,  few  individ- 
uals, it  is  apprehended,  write  so  uniformly,  that  dissimilar  formations 
of  particular  letters  are  grounds  for  concluding  them  not  to  have 
been  made  by  the  same  person."* 


SECTION     4. 

VERIFICATION   OF   TIME   AND   DATES. 

Amongst  the  mechanical  circumstances  which  occasionally  lead 
to  the  detection  of  forgery  and  fraud,  a  discrepancy  between  the 
date  of  a  writing  and  the  anno  Domini  watermark  in  the  fabric  of 
the  paper  is  one  of  the  most  striking  ;t  but  inasmuch  as  prospective 
issues  of  paper,  bearing  the  water-mark  of  a  succeeding  year,  are 
occasionally  made,  this  circumstance  is  not  always  a  safe  ground  of 
presumption.  J 

The  critical  examination  of  the  internal  contents  of  written  instru- 
ments, perhaps  of  all  others,  affords  the  most  satisfactory  means  of 
disproving  their  genuineness  and  authenticity,  especially  if  they  pro- 
fess to  be  the  productions  of  an  anterior  age.  It  is  scarcely  possible 
that  a  forger,  however  artful  in  the  execution  of  his  design,  should 
be  able  to  frame  a  spurious  composition  without  betraying  its  fraudu- 
lent origin  by  some  statement  or  allusion  not  in  harmony  with  the 
known  character,  opinions  and  feelings  of  the  pretended  writer,  or 

*  Kobson  V.  Rocke,  2  Addams,  79  ;  and  see  Rex  v.  Hawkins,  The  Theory  of  Pre- 
snmptive  Proof,  p.  94. 

t  Crisp  V.  Walpole,  2  Hagg.  521. 

J  A  Commissioner  of  the  Insolrent  Debtors'  Court  sitting  at  Wakefield  in  1836, 
discoverad  that  the  paper  he  was  then  uiing,  which  had  been  issued  by  the  [govern- 
ment stationer,  bore  the  water-mark  of  1837. 


VERIFICATION   OP  TIME  AND   DATES.  8T 

with  events  or  circumstances  -vyhich  must  have  been  known 
to  him,  or  by  a  reference  to  *fact3,  or  modes  of  thought  [  *115  ] 
characteristic  of  a  later  or  a  different  age  from  that  to 
which  the  writing  relates.*  Judicial  history  presents  innumerable 
examples  in  illustration  of  the  soundness  of  these  principles  of  judg- 
ment, of  which  the  following  are  not  the  least  interesting  and  in- 
structive. 

A  deed  was  offered  in  evidence,  bearing  date  the  13th  of  Novem- 
ber in  the  second  and  third  years  of  the  reign  of  Philip  and  Mary, 
in  which  they  were  called  "  king  and  queen  of  Spain  and  both  Sici- 
lies, and  dukes  of  Burgundy,  Milan  and  Brabant,"  whereas  at  that 
time  they  were  formally  styled  '■^princes  of  Spain  and  Sicily,"  and 
Burgundy  was  never  put  before  Milan,  and  they  did  not  assume  the 
title  of  king  and  queen  of  Spain  and  the  two  Sicilies  until  Trinity 
Term  following.! 

Alexander  Humphreys  was  tried  before  the  High  Court  of  Justici- 
ary at  Edinburgh,  April  1839,  for  forging  and  uttering  several  docu- 
ments in  support  of  a  claim  advanced  by  him  to  the  earldom  of  Stir- 
ling and  extensive  estates.  One  of  those  documents  purported  to  be 
an  excerpt  from  a  charter  of  Novodamus  of  King  Charles  the  First, 
bearing  date  the  Tth  of  December  1639,  in  favour  of  William  the 
first  Earl  of  Stirling,  and  making  the  honors  and  estates  of  that  no- 
bleman, which  under  previous  grants  were  inheritable  only  by  heirs 
male,  descendable  in  default  of  heirs  male  to  his  heirs  general.  The 
excerpt  purported  in  the  testatum  clause  to  be  witnessed  by  Arch- 
bishop Spottiswood  "  our  chancellor,"  whereas  he  died  on  the  26th 
of  November  1639,  and  it  was  proved  by  the  register  of  the  Privy 
Council  that  he  resigned  the  office  of  chancellor,  and  that  the  Great 
Seal  was  delivered  to  the  custody  of  James  Marquess  of  Hamilton 
on  the  13th  of  November  1638,  and  that  there  was  an 
*interregnum  in  the  office  of  chancellor  until  the  appoint-  [  *116  ] 
ment  of  Lord  Loudon  on  the  30th  of  September  1641. 
A  genuine  charter,  dated  four  days  after  the  pretended  charter,  was 
witnessed  by  James  Marquess  of  Hamilton,  |     In  the  margin  of  the 

*  Norton's  Evid.  of  the  Gen.  of  the  Gosp.  i.  52.  Greenleafs  Ex.  of  the  Test,  of 
the  Evan.  ^  29.     Lockhart's  Mem.  of  Scott,  ii.  207. 

t  Mossam  v.  Ivy,  10  St.  Tr,  616  ;  and  vide  Coke's  First  Inst.  7  b. 

)  It  is  a  singular  circumBtance  that  in  the  catalogue  of  the  Scottish  chancellors,  ap- 
pended to  Spottiswood's  History  and  other  works,  no  mention  is  made  of  the  interval 
between  the  reeignatioa  of  the  arcbbisbop  of  St.  Andrew's  and  the  appointment  of  the 
Earl  of  London. 


88  VERIFICATION    OF    TIME   AND    DATES. 

excerpt  was  a  reference  to  the  register  of  the  Great  Seal  Book  57^ 
in  the  following  form,  "  Reg.  Mag.  Sig.  lib.  57  ;"  but  it  was  proved 
that  that  mode  of  marking  and  reference  did  not  commence  until 
1806,  when  the  registers  were  rebound,  in  order  that  they  should 
have  but  one  title  ;  and  that  previously  to  that  time  the  title  of  those 
documents  was,  "  Charters,  book  i.,  book  ii.",  and  so  on.  In  the 
supposed  excerpt  the  son  of  the  first  earl  was  styled  "  nostro  con- 
sanguineo,"  a  mode  of  address  never  adopted  in  old  charters  in  re- 
gard to  a  commoner ;  and  there  were  other  internal  incongruities. 
A  series  of  anachronisms  conclusively  disproved  the  authenticity  of 
several  other  documents  adduced  by  the  prisoner  in  support  of  his 
claim.  One  of  these  documents  was  a  copperplate  map  of  Canada 
by  Guillaume  de  L'Isle  "  Premier  Geographe  du  Roi,"  bearing  the 
date  of  1703 ;  and  on  the  back  of  which,  amongst  other  supposed 
attestations,  were  a  note  purporting  to  be  in  the  handwriting  of 
Flechier  bishop  of  Nismes,  dated  the  3d  day  of  June  1707,  and  an- 
other note  purporting  to  be  in  the  handwriting  of  Fenelon,  arch- 
bishop of  Cambray,  of  the  date  of  the  16th  of  October  1707.  It 
was  proved  that  Flechier  died  in  1711,  and  the  letters  patent  for 
the  installation  of  his  successor  in  the  bishopric  of  Nismes,  were  pro- 
duced bearing  date  the  26th  of  February  in  that  year  ;  that  Fene- 
lon died  on  the  7th  of  January  1715  ;  and  that  De  L'Isle  was  not 

appointed  geographer  to  the  king  until  the  24th  of  August 
[  *117  ]     1718.     *In  all  of  De  L'Isle's  editions  of  his  map  the 

original  date  of  1703  was  preserved  as  the  commencement 
of  his  copyright ;  but  of  course  a  map  issued  prior  to  1718  could 
not  refer  to  his  appointment  of  geographer  to  the  king,  and  any  at- 
testation of  the  date  of  1707  to  a  map  containing  a  recognition  of 
that  appointment  must  of  necessity  be  spurious.  There  were  other 
strong  grounds  for  impugning  the  genuineness  of  these  various  doc- 
uments, which  the  jury  unanimously  found  to  be  forged.* 

Lord  Meadowbank,  in  his  charge  to  the  jury  in  the  foregoing  case, 
mentioned  a  very  remarkable  instance  of  this  nature.  A  tailor  in 
Ayr,  of  the  name  of  Alexander,  having  learned  that  a  person  of  the 
same  name  had  died,  leaving  considerable  property  without  any  ap- 
parent heirs  existing,  obtained  access  to  a  garret  in  the  family  man- 
sion ;  and  it  was  said  found  there  a  collection  of  old  letters  about 
the   family.     These  he  carried  off,  and  with  their  aid  fabricated  a 

•  See  the  several  Reports  of  the  trial  by  Archibald  Swinton,  Esq.,  and  William 
Turnbull,  Esq.    Remarks  on  the  trial  of  the  Earl  of  Stirling,  by  an  English  Lawyer, 


VERIFICATION   OF  TIME   AND   DATES.  89 

mass  of  similar  productions,  -which,  it  was  said,  clearly  proved  his 
connection  -sNith  the  family  of  the  deceased,  and  the  Lord  Ordinary 
decided  the  cause  in  his  favour  ;  the  case  however  was  carried  to 
the  Inner  House.  When  it  came  into  court,  certain  circumstances 
led  the  learned  judge,  then  a  young  man  at  the  bar,  to  doubt  the 
authenticity  of  the  documents.  One  circumstance  was  this,  that 
there  were  a  number  of  words  in  the  letters,  purporting  to  be  from 
different  individuals,  spelt,  or  rather  misspelt,  in  the  same  way,  and 
some  of  them  so  very  peculiar,  that  on  examining  them  minutely, 
there  was  no  doubt  that  they  were  all  written  by  the  same  hand. 
The  case  attracted  the  attention  of  the  Inner  House. 
The  party  was  brought  to  the  clerk's  table,  and  was  *ex-  [  *118  ] 
amined  in  the  presence  of  the  court.  He  was  desired  to 
write  to  dictation  of  the  Lord  Justice  Clerk,  and  he  misspelt  all  the 
words  that  were  misspelt  in  the  letters  in  precisely  the  same  way ; 
and  this  and  other  circumstances  proved  that  he  had  fabricated  all 
of  them  himself.  He  then  confessed  the  truth  of  his  having  written 
the  letters  on  old  paper,  which  he  had  found  in  the  garret;  and  what 
is  instructive  is  this,  that  this  result  was  arrived  at  in  the  teeth  of 
the  testimony  of  half-a-dozen  engravers,  all  saying  that  they  thought 
the  letters  were  written  by  dififerent  hands.* 

It  was  observed  by  Lord  C.  B.  Macdonald,  that  there  is  nothing 
we  are  so  little  in  the  habit  of,  as  measuring  with  any  degree  of  cor- 
rectness small  portions  of  time  ;  and  that  if  any  one  were  to  exa- 
mine with  a  watch  which  marks  the  seconds,  how  much  longer  a 
space  of  time  a  few  seconds  or  a  few  minutes  really  are  than  people 
in  general  conceive  them  to  be,  they  would  be  surprised ;  but  that 
in  general,  when  we  speak  of  a  minute,  or  an  instant,  we  can  hardly 
be  understood  to  mean  more  than  that  it  was  a  very  short  space  of 
timef .  Nevertheless  it  is  sometimes  of  the  highest  importance 
accurately  to  fix  the  exact  time  of  the  occurrence  of  an  event,  and 
a  difference  of  a  few  minutes  even  may  be  of  vital  moment.  This 
frequently  happens  in  cases  where  the  defence  is  that  of  an  alibi. 
On  a  charge  of  murder,  where  the  defence  was  of  that  nature,  and 
it  was  essential  to  fix  the  precise  times  at  which  the  prisoner  had 
been  seen  by  the  several  witnesses  soon  after  the  fatal  event  which 
was  the  subject  of  investigation,  the  object  was  satisfactorily  effected 

*  Ibid.,  and  see  the  remarkable  case  of  Smith  v.  Earl  Ferrers,  published  by  Picker- 
ing, 1846. 
t  Rex  V.  Patch,  Gurney'i  Report,  p.  171. 

14 


90  VERIFICATION   OF  TIME   AND    DATES. 

by  a  comparison  made  by  an  intelligent  witness  on  the  same  day,  of 

the   various   time-pieces   referred  to  by  the  several  -wit- 

[  *119  ]     nesscs,  with  a  public  *clock  ;  thus  affording  the  means  of 

reducing  the    times  as  spoken  to  by  them  to  a  common 

standard*. 

Scientific  testimony  grounded  on  the  state  of  wounds  and  injuries 
to  the  human  body,  or  on  its  condition  of  decay,  is  frequently  em- 
ployed indirectly  in  the  solution  of  questions  of  time ;  but  cases  of 
this  nature  belong  more  appropriately  to  the  department  of  medical 
jurisprudence. 

♦  Rex  V.  Thornton,  post. 


EXCULPATORY  PRESUMPTIONS,    &C.  91 


•CHAPTER    V.  [*120] 

EXCULPATORY    PEESUMPTIONS    AND    CIRCUMSTAN- 
TIAL   EVIDENCE. 


The  law  of  England  recognizes  several  presumptions,  juris  et  de 
jure^  which  create  entire  or  partial  exemption  from  criminal  respon- 
sibility ;  as,  that  infants  under  the  age  of  seven  years  cannot  be 
guilty  of  crime,  that  infants  above  that  age  and  under  fourteen 
years  shall  be  2y^i^na  facie  adjudged  doU  ineapaz*,  and  that,  as  to 
certain  offences  connected  with  physical  development,  minors  under 
the  age  of  fourteen  years  shall  be  conclusively  presumed  to  be  in- 
capable of  committing  them,  and  that  no  evidence  shall  be  admitted 
to  the  contrary.  Such  also  is  the  presumption  that,  offences  com- 
mitted by  the  wife  in  the  presence  of  her  husband  shall,  with  cer- 
tain exceptions,  be  considered  to  hare  been  committed  by  his  coer- 
cion.! But  the  presumptions  which  concern  the  subject  of  this  essay 
are  of  a  different  kind,  consisting  mainly  of  maxims  drawn  from 
well-digested  experience,  and  grounded  upon  considerations  of  natu- 
ral equity,  for  the  candid  construction  of  the  actions  and  motives  of 
our  fellow-men,  and  which  are  in  truth  but  particular  forms  of  strict 
justice.  An  enumeration  of  some  of  the  principal  of  these  presump- 
tions will  form  the  subject  of  this  chapter. 

1.)  In  the  investigation  and  estimate  of  criminatory 
evidence  there  is  an  antecedent  prima  facie  *presumption  [  *121  ] 
in  favour  of  the  innocence  of  the  party  accused  grounded 
in  reason  and  justice,  not  less  than  in  humanity,  and  recognized  in 
the  judicial  practice  of  all  civilized  nations ;  which  presumptions 
must  prevail  until  it  be  destroyed  by  such  an  overpowering  amount 
of  legal  evidence  of  guilt  as  is  calculated  to  produce  the  opposite 
belief^.  It  must  be  admitted  that  in  the  aggregate,  the  number  of 
convictions  vastly  exceeds  that  of  acquittals,  and  that  the  probability 
is  that,  in  a  given  number  of  cases,  far  the  greater  number  of  the 
parties  accused  are  not  innocent ;  but  according  to  all  judicial 
statistics,  and  under  every  system,  a  considerable  proportion  of  the 

•  1  Hale's  p.  C.  ch.  3.     4  Bl.  Comm.  2.  t  Rid. 

t  See  the  language  of  Lord  GillicB  in  Rex  u.  M'KiQley,  38  St.  Tr.  506. 


92  EXCULPATORY  PRESUMPTIONS  AND 

persons  put  upon  trial  are  legally  innocent.  In  any  particular  case, 
thejefore,  the  party  7nay  not  be  guilty,  and  it  is  impossible,  without  a 
violation  of  every  principle  of  justice,  to  act  upon  the  contrary  presump- 
tion of  a  superior  probability  of  guilt.  It  is  therefore  a  settled  and  in- 
violable principle,  that,  anterior  to  contrary  proof,  the  accused  shall 
be  considered  as  legally  innocent,  and  that  his  case  shall  receive  the 
same  dispassionate  and  impartial  consideration  as  if  he  were  real- 
ly so. 

2.)  It  would  be  foreign  to  the  subject  of  this  essay  to  discuss  the 
considerations  which  affect  the  credibiUty  of  evidence  in  general, — 
such  as  the  integrity,  disinterestedness,  and  ability  of  the  witnesses, 
the  consistency  of  their  testimony,  its  conformity  with  experience, 
and  its  agreement  with  collateral  circumstances*, — since  these  consi- 
derations apply  to  circumstantial  only  in  common  with  all  other  testi- 
monial evidence.  It  is  obvious,  however,  that  all  reasoning  upon  the 
relevancy  and  effect  of  circumstantial  evidence  presupposes  its  abso- 
lute verity,  and  that  such  evidence  necessarily  partakes  of  the  infir- 
mities incidental  to  all  human  tesLimony  ;  and  facts  appa- 
[  *122  ]  rently  indicative  of  *the  most  forcible  presumption  have 
been  fabricated  and  supported  by  false  testimony.  Eve- 
ry consideration  therefore,  which  detracts  from  the  credibility  of  evi- 
dence  in  the  abstract,  applies  U  fortiori  to  evidence  which  is  essen- 
tially indirect  and  inferential.  In  such  cases,  falsehood  in  the  mi- 
nutest particular  throws  discredit  upon  every  part  of  a  complainant's 
statement,  according  to  the  well-known  maxim,  qui  mendax  in  uno 
mendax  in  omnibus.  Hence,  since  facts  can  never  be  mutually  in- 
consistentf,  circumstantial  evidence  frequently  affords  the  means  of 
evincing  the  falsehood  of  direct  and  positive  affirmative  testimony, 
and  even  of  disproving  the  existence  of  the  corpus  delicti  itself,  by 
manifesting  the  incompatibility  of  that  testimony  with  surrounding 
and  concomitant  circumstances,  of  the  reality  of  which  there  is  no 
doubt:]:.  Sir  Matthew  Hale  mentions  a  very  remarkable  case, 
where  an  elderly  man  was  charged  with  violating  a  young  girl  of 
fourteen  years  of  age,  but  it  was  proved  beyond  all  possibility  of 
doubt,  that  a  physical  infirmity  rendered  the  perpetration  of  such  a 
crime  utterly  impossible§.  The  prosecutrix  of  an  indictment  against 
a  man  for  administering  arsenic  to  her,  to  procure  abortion,  deposed 
that  he  had  sent  her  a  present  of  tarts  of  which  she  partook,  and 

*  Greenleaf  's  Ex.  ut  tupra,  ^29.et  leq. 

t  Locke  on  the  Ham.  Underst.  b.  iv.  ch.  20.  s.  8. 

t  Best  on  Pres.  p.  54.  §  1  P.  C.  c.  58. 


CIKCUMSTANTIAL  EVIDENCE.  9S 

that  shortly  afterwards  she  was  seized  with  symptoms  of  poisoning. 
Amongst  other  inconsistencies,  she  stated  that  she  had  felt  a  coppe- 
ry taste  in  the  act  of  eating,  which  it  was  proved  that  arsenic  does 
not  possess  ;  and  from  the  quantity  of  arsenic  in  the  tarts  which  re- 
mained untouched,  she  could  not  have  taken  above  two  grains,  while 
after  repeated  vomitings,  the  alleged  matter  subsequently  preserved 
contained  nearly  fifteen  grains,  though  the  matter  first  vomited  con- 
tained only  one  grain.  The  prisoner  was  acquitted,  and 
the  *prosecutrix  afterwards  confessed  that  she  had  prefer-  [  *123  ] 
red  the  charge  from  motives  of  jealousy.* 

3.)  Irrespectively  of  and  distinct  from  any  positive  discrepancy, 
there  is  a  consistency  of  deportment  and  conduct  grounded  upon  the 
invariable  laws  of  our  moral  nature,  which  is  essentially  character- 
istic of  truth  and  honesty,  and  the  absence  of  which  necessarilj'  de- 
tracts from  the  credit  of  testimonial  evidence.  We  reasonably  ex- 
pect to  discover  in  the  demeanour  of  a  party  who  has  just  reason  to 
complain  of  personal  injury  or  violated  right,  prompt  and  unequivocal 
indications  of  that  sense  of  wrong  and  insecurity  which,  as  the  inva- 
riable consequence,  is  naturally  and  involuntarily  generated  in  every 
human  mind.  Sir  Matthew  Hale,  in  reference  to  one  of  the  great- 
est of  human  outrages,  says,  "  If  the  party  concealed  the  injury 
for  any  considerable  time  after  she  had  opportunity  to  complain ;  if 
the  place  where  the  fact  was  supposed  to  be  committed  were  near  to 
inhabitants,  or  common  recourse  or  passage  of  passengers,  and  she 
made  no  outcry  when  the  fact  was  supposed  to  be  done,  when  and 
where  it  is  probable  she  might  be  heard  by  others  ;  these  and  the 
like  circumstances  carry  a  strong  presumption  that  her  testimony  is 
false  or  feigned. "f  These  cautionary  considerations  are  applica- 
ble with  more  or  less  of  force  to  accusations  of  every  descrip- 
tion ;  but  they  are  more  especially  weighty  and  pertinent  in  refer- 
ence to  the  particular  crime  referred  to,  of  which  the  learned  author 
has  said,  that  "  it  is  an  accusation  easily  to  be  made,  and  hardly  to 
be  proved,  and  harder  to  be  defended  by  the  party  accused,  though 
never  so  innocent.''^  Such  cases,  he  farther  observes,  are  not  un- 
common, and  he  has  related  the  particulars  of  two  cases,  where, 
though  the  charges  were  groundless,  the  parties  with  dif- 
ficulty *escaped.  "I  only  mention  these  instances,"  said  [  *124  j 
the  upright  judge,  "  that  we  may  be  the  more  cautious 
upon  trials  of  ofiences  of  this  nature,  wherein  the  court  and  jury 

*  Rex  t>.  "Whalley,' York  Sprmg  Assizes,  1829.    ChriBtuon  on  Poisons,  p  96. 
t  1  Hale'i  P.  C.  c.  58.  t  Ibid- 


94  EXCULPATORY   PRESUMPTIONS  AND 

may  ■with  so  much  ease  be  imposed  upon,  without  great  care  and 
vigilance,  the  heinousness  of  the  offence  many  times  transporting  the 
judge  and  jury  with  so  much  indignation,  that  they  are  over-hastily 
carried  to  the  conviction  of  the  persons  accused  thereof  by  the  con- 
fident testimony  sometimes  of  malicious  and  false  witnesses."* 

4.)  Since  an  action  without  a  motive  would  be  an  effect  without  a 
cause,  a  presumption  is  created  in  favor  of  innocence  from  the  ab- 
sence of  all  apparent  inducement  to  the  commission  of  the  imputed 
offence.  But  the  investigation  of  human  motives  is  often  a  matter 
of  great  difficulty,  from  their  latency  or  remoteness  ;  and  experience 
shows  that  aggravated  crimes  are  sometimes  committed  from  very 
slight  causes,  and  occasionally  even  without  any  apparent  or  discov- 
erable motive.  This  particular  presumption  would  therefore  seem  to 
be  applicable  only  to  cases  where  the  guilt  of  the  individual  is  in- 
volved in  doubt ;  and  the  consideration  for  the  jury  in  general  is 
rather  whether  upon  the  other  parts  of  the  evidence  the  party  ac- 
cused has  committed  the  crime,  than  whether  he  had  any  adequate 
motive. f 

5.)  The  character  of  a  party's  motives,  even  when  they  are  un- 
questionably of  a  criminal  nature,  may  nevertheless  be  susceptible 
of  different  interpretations,  and  indicative  of  very  different  degrees 
of  moral  and  legal  turpitude.  Concealment  of  the  death  of  an  ille- 
gitimate child,  or  the  clandestine  disposal  of  its  body,  for  instance, 
may  be  accounted  for,  either  by  a  purpose  to  suppress  evidence  of  a 
murder,  or  merely  by  the  desire  of  preserving  the  repu- 
[  *125  ]  tation  of  *female  chastity.  In  all  such  cases,  every  sound 
principle  of  interpretation  and  judgment  requires,  that  in 
the  absence  of  contrary  proof,  the  act  shall  be  referred  to  the  opera- 
tion of  the  least  guilty  motive ;  conformably  to  the  maxim,  free- 
sumptio  judicatur  potentior,  quce  est  henignior.X  Of  this  evident 
principle  of  justice  the  statute  21  Jas.  I.  c.  27.  (now  happily  ex- 
pui^ed  from  our  code),  which  made  the  concealment  of  the  death 
of  an  illegitimate  child  by  its  mother,  a  conclusive  presumption  of 
murder,  unless  she  could  make  proof  by  one  witness  at  least,  that 
the  child  was  born  dead,  was  a  flagrant  violation. 

6.)  The^jnw2a/ti«e  presumption  in  favour  of  innocence  from  the 
absence  of  all  apparent  motive,  is  greatly  strengthened,  where  all 

*  1  Hale's  p.  C.  c.  58. 

t  See  Mr.  Justice  Abbott's  charge  in  Rex  v.  Donnall,  ut  supra,  p.  130. 

X  Menoch.  De  PrRs.  lib.  v.  pr.  29. 


CIRCUMSTANTIAL   EVIDENCE,  95 

inducement  to  the  commission  of  imputed  crime  is  opposed  by  strong 
counteracting  motives  ;  as  where  a  party  indicted  for  arson  with  in- 
tent to  defraud  an  insurance  office  has  furniture  on  the  premises 
worth  more  than  the  amount  of  his  insurance,*  or  where  a  party  ac- 
cused of  murder  has  a  direct  interest  in  the  continuance  of  the  life 
of  a  party  supposed  to  have  been  murdered. f  A  fortiori  would 
this  presumption  seem  to  apply  where  the  life  of  the  suspected  party 
has  been  endangered,  as  the  consequence  of  the  supposed  criminal 
act ;  as  where  a  party  charged  with  murder  by  poisoning  had  her- 
self partaken  of  the  poisoned  food.  J  This  candid  and  just  effect  has 
not  always  been  conceded  to  this  circumstance  of  favourable  pre- 
sumption ;  but  the  danger  of  disregarding  it  was  strikingly  manifested 
in  the  case  of  a  young  woman  who  was  tried  at  the  Old  Bailey 
(April  1815),  before  the  recorder  of  London,  for  administering 
poison  to  several  members  of  a  family  in  which  she  lived 
as  cook.  *Abouta  fortnight  before  the  event  in  question,  [  *126  ] 
her  mistress  had  reproved  the  prisoner  for  some  levity  with 
her  husband's  apprentices :  but  in  other  respects  there  was  no  mis- 
understanding between  them  ;  and  though  she  had  given  her  warn- 
ing, she  had  afterwards  overlooked  her  indiscretion  and  continued 
her  in  her  service.  The  prisoner  made  a  beefsteak  pie  and  yeast 
dumphngs  for  dinner,  from  flour  contained  in  the  same  vessel.  Shortly 
after  partaking  of  the  dumplings,  not  only  her  master  and  mistress, 
and  her  master's  father,  but  one  of  the  apprentices  and  the  prisoner 
herself  became  extremely  ill ;  while  those  members  of  the  family 
who  had  eaten  only  of  the  pie  were  not  affected.  The  remains  left 
in  the  pan  in  which  the  dumplings  had  been  mixed  were  scraped  to- 
gether by  the  father,  but  not  until  the  following  morning,  and  a 
white  powder  was  found  containing  half  a  teaspoonful  of  arsenic. 
Arsenic  was  kept  for  killing  mice,  in  a  paper  marked  "  deadly 
poison,"  in  an  open  drawer  accessible  to  all  the  family.  No  analysis 
was  made  of  the  dumplings,  and  there  was  no  evidence  that  they  con- 
tained arsenic,  and  from  the  large  quantity  found  in  the  scrapings  of 
the  pan,  it  seems  more  likely  that  it  had  been  poured  on  the  dump- 
lings. Nor  was  there  any  evidence  to  lead  to  the  inference  that  the 
prisoner  had  eaten  of  the  poisoned  food  as  an  artifice  to  avert  suspi- 
cion, for  she  made  no  attempt  to  dispose  of  the  remainder  of  the 
dumplings,  and  the  dish  was  left  unwashed,  and  its  contents  remained 

*  Kex  V.  Bingham,  Horsham  Spring  Assizes,  1811. 

t  Rex  ^.'Downing,  post. 

X  Reg  V.  Sarah  Hawliins,  Staflford  Summer  Assizes,  1839. 


96  EXCULPATORY   PRESUMPTIONS   AND 

on  the  following  day  exactly  as  they  had  been  brought  from  the 
table.  No  motive  was  suggested  for  the  commission  of  so  diabolical 
a  crime,  except  the  slight  misunderstanding  which  appeared  to  have 
been  forgotten  on  both  sides,  and  which  could  hardly  have  presented 
an  inducement  to  the  commission  of  such  a  deed.  Of  the  important 
fact  that  the  prisoner  herself  had  partaken  of  the  poisoned  food,  and 
suffered  as  severely  as  any  one  of  the  other  persons  who 
[  *127  ]  had  partaken  of  it,  no  notice  *wa3  taken  in  the  Recorder's 
charge  ;  and  there  is  too  much  reason,  from  circumstances 
which  have  since  transpired,  to  believe  that  the  unfortunate  young 
woman  suffered  for  the  act  of  another  person.* 

7.)  Since  falsehood,  concealment,  flight,  and  other  like  acts,  are 
generally  regarded  as  indications  of  conscious  guilt,  it  naturally  fol- 
lows, that  the  absence  of  these  marks  of  mental  emotion,  and  still 
more  a  voluntary  surrender  to  justice,  when  the  party  had  the  oppor- 
tunity of  concealment  or  flight,!  must  be  considered  as  leading  to 
the  opposite  presumption ;  and  these  considerations  are  frequently 
urged  with  just  effect,  as  indicative  of  innocence  ;  but  the  force  of 
the  latter  circumstance  may  be  weakened  by  the  consideration  that 
the  party  has  been  the  object  of  diligent  pursuit.^  It  must  be  also 
remembered,  that  flight  and  other  similar  indications  of  fear  may  be 
referable  to  guilt  of  another  and  less  penal  character  than  that  in- 
volved in  the  particular  charge. § 

8.)  As  is  the  case  with  other  presumptions,  so  the  inference  of 
guilt  from  the  recent  possession  of  stolen  property  may  be  rebutted 
by  circumstances  which  create  a  counter-presumption  ;  as  where  the 
property  is  found  in  the  prisoner's  possession  under  circumstances 
which  render  it  more  probable  that  some  other  person  was  the  thief. 
Therefore,  where,  on  the  trial  of  a  mother  and  her  two  sons  for 
shecpstealing,  it  was  proved  that  the  carcase  of  a  sheep  was  found 
in  the  house  of  the  mother,  it  was  nevertheless  considered  that  the 
presumption  ai-ising  from  the  possession  of  the  stolen  property  imme- 
diately after  the  theft  was  rebutted  so  far  as  respected 
[  *128  ]  her,  by  the  circumstance  that  *male  footsteps  only  were 
found  near  the  spot  from  which  the  sheep  had  been  stolen.* 

*  Rex  V.  Fenning,  Sessions  Papers.  1815,    Best  on  Pres,  p.  289.    Mem.  of-Sir 
Samuel  Eomilly,  iii.  285. 
t  INIenochius  De  Prses.  lib.  v.  pr.  50. 
X  Rex  u.  Buish,  1  Syme's  Justiciary  Rep.  277. 
§  Rex  r.  Scofield,  31  St.  Tr.  1035. 
II  Rex  V.  Arundel  and  others  1  Lewin's  C.  C.  115. 


CIRCUMSTANTIAL   EVIDENCE.  97 

A  woman  was  tried  for  the  larceny  of  five  saws  which  had  been 
stolen  fi'om  the  workshop  of  a  hat-block  turner  during  the  night. 
There  was  a  hole  in  the  building  large  enough  for  a  person  to  have 
crept  in  through  it.  On  the  following  day  the  prisoner  pledged  two 
of  the  saws  with  a  pawnbroker  in  the  neighbourhood.  On  the  fol- 
lowing night,  the  house  of  the  prosecutor  was  broken  open  and  a 
number  of  articles  stolen,  and  no  communication  existed  between  the 
house  and  the  workshop.  Two  days  afterwards  the  prisoner  was 
taken  into  custody  for  this  theft,  in  the  house  of  a  man  who  was 
himself  charged  with  having  committed  the  burglary.  Mr,  Baron 
Gurney  said  it  was  improbable  that  the  female  should  have  taken 
these  saws,  but  that  it  was  extremely  probable  that  she  should  have 
been  employed  by  another  person  to  pawn  them,  and  that  it  was 
hardly  a  case  in  which  the  general  rule  could  apply,  and  that  it 
would  be  safer  to  acquit  the  prisoner.* 

9.)  Circumstances  of  apparently  unfavourable  presumption  may 
be  susceptible  of  an  explanation  consistent  with  the  prisoner's  inno- 
cence, and  may  really  be  irrelevant  to  the  particular  inference 
sought  to  be  derived  from  them  ;t  and  they  may  be  opposed  by 
circumstances  which  weaken  or  neutralize,  or  even  repel  the  imputed 
presumption,  and  induce  a  stronger  counter-presumption, J  to  every 
allegation  of  the  existence  of  which  justice  demands  that  dispassion- 
ate and  candid  consideration  be  given.  On  the  trial  of  a  shoe- 
maker for  the  murder  of  an  aged  female,  it  appeared  that  his  leath- 
ern apron  had  several  circular  marks  made  by  paring 
away  superficial  pieces,  which  it  was  supposed  *had  been  [  *129  J 
removed  as  containing  spots  of  blood,  but  it  was  satisfac- 
torily proved  that  the  prisoner  had  cut  them  ofi"  for  plasters  for  a 
neighbour.  §  Two  men  were  tried  at  Winchester  Spring  Assizes 
1843,  for  killing  a  sheep  with  intent  to  steal  the  carcass.  The 
prosecutor  had  three  sheep  on  the  14th  of  December  on  a  common, 
on  the  evening  of  which  day  the  prisoners,  one  of  whom  had  a  gun, 
were  seen  near  the  common  driving  several  sheep  before  thetn. 
One  of  the  witnesses,  when  near  the  prosecutor's  house,  heard  the 
report  of  a  gun  in  the  direction  of  the  common,  and  having  a  sus- 
picion of  the  object  of  the  pi'isoners,  went  to  the  prosecutor's  house 
and  communicated  his  suspicion,  in  consequence  of  which  the  prose- 

•  Rex  V.  Collier,  4  Jurist,  708. 

t  Rex  V.  Thornton,  Hex  v.  Looker,  post. 

t  Jayne  v.  Price,  5  Tannt.  326. 

§  Rex  V.  Fitter,  before  Mr.  Justice  Taanton,  Warwick  Snmmer  Assizea,  1834. 

15 


98  EXCULPATORY  PRESUMPTIONS  AND 

cuter  and  the  witness  went  to  the  common  on  which  the  sheep  had 
been  left  feeding  and  discovered  that  one  of  them  was  not  there. 
The  prisoners  were  apprehended  the  same  night  at  their  respective 
homes.  In  the  lodgings  of  one  of  the  prisoners  (Courtnage,)  a  gun 
was  found  which  had  been  recently  fired ;  and  upon  the  person  of 
the  other  prisoner,  a  knife  was  found  discoloured  with  blood.  No 
traces  however  were  found  of  the  lost  sheep  at  that  time,  but  the 
next  day  the  carcass  was  found,  concealed  by  fern,  on  the  common  ; 
the  sheep  had  been  shot  and  also  stuck  in  the  neck.  Two  days 
afterwards,  on  searching  near  the  spot  where  the  sheep  was  found, 
two  small  pieces  of  newspaper  were  discovered,  singed  and  bearing 
marks  of  having  been  fired  from  a  gun.  In  the  house  of  the  pris- 
oner Courtnage  were  found  a  gun  and  some  shot  and  powder, 
wrapped  in  a  piece  of  newspaper,  from  which  two  small  pieces  had 
been  torn ;  and  on  comparing  the  two  pieces  picked  up  on  the  com- 
mon, they  were  found  to  be  the  identical  pieces  so  torn  from  the 
paper  in  question.  Notwithstanding  these  apparently 
[  *130  ]  conclusive  circumstances,  the  jury  acquitted  *the  prisoner 
as  it  appeared  from  the  cross-examination  of  one  of  the 
witnesses  that  he  had  seen  them  shooting  on  the  common  on  the  pre- 
vious Sunday.*  A  man  was  tried  for  a  murder  on  Horwich  Moor, 
under  circumstances  which  were  extremely  suspicious ;  but  the  pre- 
sumption against  him  was  greatly  weakened,  if  not  entirely  destroyed 
by  the  circumstance  that  six  shots  extracted  from  the  deceased's 
brain  all  corresponded  in  weight  with  the  shot  known  as  No.  3 ,  while 
the  shot  in  the  prisoner's  bag  contained  a  mixture  of  Nos.  2  and 
3,  and  the  charge  in  the  gun  was  found  to  contain  the  same  mix- 
ture, f  A  druggist's  apprentice  was  tried  for  the  murder  by  prussic 
acid  of  a  female  servant  who  was  pregnant  by  him,  and  the  case 
was  one  of  much  suspicion  ;  but  there  was  a  strong  counter-presump- 
tion from  the  fact  that  the  deceased  had  made  preparations  for  a 
miscarriage  on  the  very  night  in  question.^ 

Nor  must  it  be  overlooked,  as  one  of  the  sources  of  error  and  fal- 
lacy in  these  cases,  that  circumstances  of  adverse  presumption,  ap- 
parently the  most  conclusive,  may  be  fabricated  by  the  real  ofiender, 
in  order  to  preclude  suspicion  from  attaching  to  himself,  and  to  cause 
it  to  rest  upon  another  ;  as  where  a  thief  transfers  marked  money 

*  Rex  V.  Courtnage  and  Mossingham,  coram  Mr.  Sergeant  Atcherley. 
t  Rex  V.  Whittall,  Liverpool  Spring  Assizes,  1839,  coram  Mr.  Baron  Alderson. 
i  Rex  t'.  Freeman,  Leicester  Spring  Assises,  1839,  coram  Best,  L.  C.  J.;   and  see 
ftez  V.  Barnard,  19  St.  Tr.  816. 


CIRCUMSTANTIAL    EVIDENCE.  99 

from  his  own  pocket  Into  that  of  another  person,*  or  surreptitiously 
puts  on  the  shoes  of  another  person  Avhile  engaged  in  the  commission 
of  crime,  that  the  impressions  may  lead  to  the  inference  that  the 
crime  wag  committed  by  a  third  party. f 

*10.)  In  forming  a  judgment  of  criminal  intentions, 
evidence  that  the  party  has  previously  borne  a  good  char-  [  *131  ] 
acter  is  often  highly  important,  if  the  case  is  doubtful  ; 
and  if  it  hangs  in  even  balance,  character  should  make  it  preponder- 
ate in  favour  of  a  defendant,  J  But  if  the  evidence  of  guilt  be  com 
plete  and  convincing,  then  testimony  of  previous  good  character  can- 
not and  ought  not  to  avail. §  The  reasonable  operation  of  such  evi- 
dence is  to  create  a  presumption  that  the  party  was  not  likely  to  have 
committed  the  act  imputed  to  him ;  which  presumption,  however 
weighty  in  a  doubtful  case,  cannot  but  be  irrelevant  and  unavailing 
against  evidence  which  irrefragably  establishes  the  fact. 

Evidence  of  character  must  of  course  be  applicable  to  the  partic- 
ular nature  of  the  charge  ;  for  instance,  to  prove  that  a  party  has 
borne  a  good  character  for  humanity  and  kindness,  can  have  no  bear- 
ing in  reference  to  a  charge  of  dishonesty.  The  correct  mode  of  in- 
quiry is,  as  to  the  general  character  of  the  accused,  and  whether  the 
witness  thinks  him  likely  to  be  guilty  of  the  offence  which  is  charged 
against  him.|| 

It  is  not  permitted  to  adduce  'evidence  that  the  prisoner  has  not 
borne  a  good  character,  an  inquiry  which  is  really  irrelevant  and  cal- 
culated to  divert  attention  from  the  true  point  to  a  collateral  one, 
since  even  if  his  general  character  were  clearly  shown  to  be  bad,  he 
may  not  have  committed  the  act  in  question.  This  principle  has 
been  carried  so  far,  that,  on  an  indictment  for  a  particular  offence, 
evidence  of  an  admission  by  the  accused  that  he  was  addicted  to 
the  commission  of  similar  offences  was  rejected  as  irrelevant.^ 

*If,  however,  the  presumption  arising  from  the  evidence 
of  previous  good  character  be  set  up  by  the  prisoner,  it     [  *132  ] 
is  then  competent  to  neutralize  its  effect  by  counter-evi- 

*  Jennings's  case.  The  Theory  of  Pres.  Proof,  p.  65  ;  and  see  the  case  of  Da 
Moulin,  App.  to  the  Life  of  Eugene  Aram. 

t  The  Theory  of  Pres.  Proof,  p.  102,  and  see  the  remarkable  case  of  Fran9oi9 
Mayenc,  Gabriel,  ut  supra,  p.  403. 

t  Per  Lord  Ellenborough  in  Rex  r.  Davison,  31  St.  Tr.  217. 

§  Jbid.  and  Rexi;.  Waigh,  31  St.Tr.  1122. 

II  Per  Lord  Ellenborough  in  Rex  v.  Davison,  31  St.  Tr.  187. 

IT  Bex  V.  Cole,  Best  on  Pres.  p.  212. 


100  EXCULPATORY   PRESUMPTIONS   AND 

dence.  Thus,  where  a  prisoner  was  indicted  for  a  highway  robbery, 
and  called  a  witness  who  deposed  to  having  known  him  for  years, 
during  which  time  ho  had  borne  a  good  character,  it  was  permitted 
to  ask  the  witness  on  cross-examination  whether  he  had  not  heard 
that  the  prisoner  was  suspected  of  having  committed  a  robbery  which 
had  taken  place  in  the  neighborhood  some  years  before  ;  Mr.  Baron 
Parke  said,  that  "  the  question  is  not  whether  the  prisoner  was  guilty 
of  that  robbery,  but  whether  he  was  suspected  of  having  been  impli- 
cated in  it.  A  man's  character,"  added  the  learned  judge,  "  is  made 
up  of  a  number  of  small  circumstances,  of  which  his  being  suspected 
of  misconduct  is  one."* 

As  a  general  rule,  neither  the  prosecutor  nor  the  prisoner  can 
enter  into  evidence  as  to  particular  facts  of  good  or  bad  conduct ; 
but  an  exception  to  the  rule  has  been  created  by  statute  6  and  7 
"William  IV.  c.  Ill,  which  enacts  that,  "if  upon  the  trial  of  any 
person  for  any  subsequent  felony,  such  person  shall  give  evidence  of 
his  good  character,  it  shall  be  lawful  for  the  prosecutor  in  answer 
thereto,  to  give  evidence  of  the  conviction  of  such  prisoner  for  the 
previous  felony." 

11.)  Of  all  kinds  of  exculpatory  defence,  that  of  an  aliU^  if 
clearly  established  by  unsuspected  testimony,  is  the  most  satisfactory 
and  conclusive.  While  the  foregoing  exculpatory  considerations  are 
more  or  less  of  an  argumentative  and  inconclusive  character,  this 
defence  is  absolutely  incompatible  with,  and  exclusive  of,  the  possi- 
bility of  the  truth  of  the  charge. 

It  is  obviously  essential  to  the  satisfactory  proof  of  an 
[  *133  ]  *alihi^  that  it  should  cover  the  whole  of  the  time  of  the 
transaction  in  question,  so  as  to  render  it  impossible  that 
the  prisoner  could  have  committed  the  act ;  it  is  not  enough  that  it 
renders  his  guilt  improbable  merely.  A  defence  of  an  alibi  was 
therefore  disregarded,  because  all  that  the  prisoners  offered  to  prove 
was  that  they  were  in  bed  on  the  night  in  question  at  12  o'clock, 
and  were  found  in  bed  next  morning  after  the  arson  with  which  they 
were  charged  had  taken  place,  the  distance  being  two  miles,  so  that 
they  might  have  risen,  committed  the  deed,  and  returned  to  bed.f 

The  credibility  of  an  alihi  is  greatly  strengthened  if  it  be  set  up 
at  the  moment  when  the  accusation  is  first  made,  and  consistently 
maintained  throughout  the  subsequent  proceedings. $     On  the  other 

,   •  Rex  V.  "Wood,  5  Jurist,  225,  and  Best  on  Pres.  p.  215. 
t  Rex  V.  Fraser,  Alison's  Princ.  p.  625. 
t  See  a  remarkalile  case  of  this  kind,  Rex  v.  Thornton,  post,  p,  141 


CIRCUMSTANTIAL   EVIDENCE.  101 

hand,  it  is  a  material  circumstance  to  lessen  the  weight  of  a  defence 
of  this  kind,  if  it  be  not  resorted  to  until  sometime  after  the  charge 
has  been  made ;  or  if,  having  been  once  resorted  to,  a  different  and 
inconsistent  defence  is  afterwards  set  up. 

This  defence  is  often  entertained  with  much  distrust,  because  it  is 
easily  concocted  and  frequently  resorted  to  falsely.  "  It  must  be 
admitted,"  says  Sir  Michael  Foster,  "  that  mere  alibi  evidence  lieth 
under  a  great  and  general  prejudice,  and  ought  to  be  heard  with  un- 
common caution  ;  but  if  it  appeareth  to  be  founded  in  truth,  it  is  the 
best  negative  evidence  that  can  be  offered  :  it  is  really  positive  evi- 
dence, which  in  the  nature  of  things  necessarily  implieth  a  negative  ', 
and  in  many  cases  it  is  the  only  evidence  which  an  innocent  man  can 
offer*." 

The  foregoing  examples  may  suffice  to  illustrate  the  subject  of  ex- 
culpatory presumptions ;  but  it  is  obvious,  that  as  incul- 
patory *facts  are  infinitely  diversified,  exculpatory  facts  [  *134  } 
must  admit  of  the  same  extent  of  variety,  and  that  they 
may  be  of  every  degree  of  force.  In  all  such  cases  of  conflicting 
presumptions,  it  is  the  duty  of  the  jury,  with  the  assistance  of  the 
court,  to  weigh  and  estimate  the  force  of  each  several  circumstance 
of  presumption,  and  to  act  upon  what  appear  to  be  the  superior  prob- 
abilities of  the  case  ;  and  if  there  be  not  a  decided  preponderance 
of  evidence  to  establish  the  guilt  of  the  party,  to  take  the  safe  and 
merciful  course,  by  abstaining  from  pronouncing  a  verdict  of  guilt, 
•where  the  necessary  light  and  knowledge  to  justify  them  in  so  doing 
with  the  full  assurance  of  moral  certainty,  have  not  been  vouchsafed.! 

♦  Foster's  C.  L.  p.  368  ;  and  see  the  obsenrations  of  Mr.  Baron  George,  in  Rex  v, 
Brennan,  30  St.  Tr.  79. 

t  Mittermaier,  ut  supra,  ch.  56. 


102  RULES   OF   INDUCTION  SPECIALLY   APPLICABLE 


[*135]  •CHAPTER    VI 


RULES    OF    INDUCTION    SPECIALLY     APPLICABLE 
TO    CIRCUMSTANTIAL   EVIDENCE. 


By  the  process  of  induction  is  in  strictness  meant,  the  generaliz- 
ing or  classifying  facts  by  observed  resemblances  and  diversities*  ; 
or  in  other  words,  the  operation  of  discovering  and  proving  general 
propositions!.  It  comprehends,  in  the  strictest  propriety,  every  pro- 
cess of  reasoning  and  inference,  so  that  the  operation  of  indirectly 
ascertaining  individual  facts  in  another  form  of  the  same  proceed- 
ing ;  and  every  step  in  a  train  of  reasoning  and  inference  is  essen- 
tially inductive,  whether  we  are  inquiring  into  a  scientific  principle, 
or  into  an  individual  fact:):. 

It  has  been  observed  by  a  celebrated  writer  on  the  science  of 
mind,  that  "  the  knowledge  of  the  philosopher  differs  from  that  in- 
formation which  is  the  fruit  of  common  experience,  not  in  kind,  but 
in  degree  ;  and  that  the  ultimate  object  which  the  philosopher  aims 
at  in  his  researches,  is  precisely  the  same  with  that  which  every  man 
of  plain  understanding,  however  uneducated,  has  in  view,  when  he 
remarks  the  events  which  fall  under  his  observation,  in  order  to  ob- 
tain rules  for  the  future  regulation  of  his  conduct§."  It 
[  *136  ]  follows,  that  every  branch  of  philosophical  research  •in- 
volves essentially  the  same  intellectual  operations.  The 
rules  for  estimating  the  force  of  arguments  and  the  truth  of  propo- 
sitions consequently  belong  to  the  province  of  Logic  ;  and  the 
maxims  of  evidence  are  only  a  selection  of  logical  rules  applied  to  a 
particular  subject-matter ||.  Hence,  there  are  scarcely  any  rules  of 
judgment,  perhaps  none,  which  relate  exclusively  to  judicial  inqui- 
ries founded  upon  circumstantial  evidence  ;  the  maxims  which  spe- 
cially apply  to  cases  of  that  kind,  being  rather  in  the  nature  of  co- 
rollaries from  general  propositions  applicable  alike  to  moral  evidence 

*  Brougham'  Nat.  Theol.  p.  167. 

t  Mill's  Logic,  i.  347.  t  lb.  i.  224. 

§  Stewart's  El.  vol.  ii.  ch.  iv.  s.  1 ;  and  see  Benth.  Jud.  Ev.  book  i.  ch.  i. 
II  Logique  Judiciaire,  par  Hortensius  de  St.  Albin,  p.  14.    Traite  de  I'lnstraction 
Criminelle,  par  Faustin  H^Iie,  t.  i.  p.  16.     Mittermaier,  ut  supra,  ch.  57. 


TO    CIRCUMSTANTIAL   EVIDENCE.  103 

of  every  kind.  But  inasmuch  as  the  rules  which  philosophic  wis- 
dom and  judicial  experience  and  sagacity  have  recognized  as  safe- 
guards of  truth  and  justice  in  general,  apply  with  peculiar  pertinen- 
cy and  force  to  circumstantial  evidence,  it  is  necessary  briefly  to  ad- 
vert to  some  of  the  most  important  of  them ;  and  the  more  especial- 
ly so,  as  the  transition  will  be  facilitated  to  other  important  consider- 
ations essentially  connected  with  our  subject. 

Rule  1. — The  facts  alleged  as  the  basis  of  any  legal  inference^ 
must  he  strictly  and  indubitably  connected  with  the  factum  proban- 
dum.  This  rule — intended  to  guard  against  fallacies  of  appearance 
and  generalization* — is  an  indispensable  condition  of  all  so  and  in- 
duction ;  of  which  it  is  the  object,  by  proper  rejections  and  exclu- 
sions, and  after  as  many  negations  as  are  necessaryf,  to  verify  facts 
and  clear  them  of  all  ambiguity  in  their  application  ;  so  that  they 
may  become  the  premises  of  logical  argument  and  reasoning.  In- 
duction is  essentially  a  process  of  investigation  and  elimination. 
The  line  of  demarcation  between  conjecture  and  reahty 
is  sometimes  so  faint  and  indistinct  as  to  be  *impercepti-  [  *137  ] 
ble.  In  moral  investigations  the  facts  are  more  obscurely 
developed  than  when  physical  phenomena  are  the  subjects  of  inqui- 
ry ;  and  they  are  frequently  blended  Avith  foreign  and  irrelevant  cir- 
cumstances, so  that  the  verification  of  them,  and  the  establishment 
of  their  connection  with  the  factum  probandum,  become  matter  of 
considerable  difficulty.  No  weight  therefore  must  be  attached  to 
circumstances  which,  however  they  may  excite  conjecture,  do  not 
warrant  belief.  Occurrences  may  be  mysterious  and  justify  even 
vehement  suspicion,  and  yet  the  supposed  connection  between  them 
may  be  but  imaginary,  and  their  co-existence  indicative  of  accidental 
concurrence  merely,  and  not  of  mutual  correlation.  "  Where  there 
is  nothing  but  the  evidence  of  circumstances  to  guide  you,"  said 
Mr.  Justice  Bayley,  "  those  circumstances  ought  to  be  closely  and 
necessarily  connected,  and  to  be  made  as  clear  as  if  there  were  ab- 
solute and  positive  proof|."  Every  circumstance  therefore  which  is 
not  clearly  shown  to  be  really  connected  as  its  correlative  with  the 
hypothesis  it  is  supposed  to  support,  must  be  rejected  from  the  judi- 
cial balance  ;  in  other  words  it  must  be  distinctly  established  that 
there  exists  between  the  factum  probandum  and  the  facts  which  are 
adduced  in  proof  of  it,  a  real  connection,  either  evident  and  neces- 

•  Mill's  Logic,  vol.  ii.  book  t.  ch.  2.  and  3. 

t  Nov.  Org.  lib.  i.  Aph.  cv. 

t  Rex  V.  Downiog,  Salop  Summer  Assiees,  1822. 


104  RULES    OF   INDUCTION   SPECIALLY   APPLICABLE 

sary,  or  at  least  so  highly  probable  as  to  admit  of  no  other  reasona- 
ble explanation*. 

The  following  cases  exemplify  the  dangerous  consequences  which 
may  ensue  from  the  disregard  of  this  most  salutary  cautionary 
rule. 

Two  brothers-in-law,  Joseph  Downing  and  Samuel  "Whitehouse, 
met  by  appointment  to  shoot  and  afterwards  to  looic  at  an  estate, 

which  on  the  death  of  Whitehouse's  wife  without  issue 
[  *138  ]     would  devolve  on  Downing.     They  arrived  *at  the  place 

of  meeting  on  horseback,  Downing  carrying  a  gun-barrel 
and  leading  a  colt.  After  the  business  of  the  day,  and  drinking  to- 
gether some  hours,  they  set  out  to  return  home,  Downing  leading 
his  colt  as  in  the  morning.  Their  way  led  through  a  gate  opening 
from  the  turnpike-road,  and  thence  by  a  narrow  track  through  a 
wood.  On  arriving  at  the  gate  Downing  discovered  that  he  had 
forgotten  his  gun-barrel ;  and  a  man  who  had  accompanied  them  to 
open  the  gate  went  back  for  it,  returning  in  about  three  minutes. 
In  the  meantime  Whitehouse  had  gone  on  in  advance ;  and  the  pris- 
oner, having  received  his  gun-barrel,  followed  in  the  same  direction. 
Shortly  afterwards  Whitehouse  was  found  lying  on  the  ground  in  the 
wood,  at  a  part  where  the  track  widened,  about  600  yards  from  the 
gate,  with  his  hat  off  and  insensible,  from  several  wounds  in  the 
head  ;  one  of  which  had  fractured  his  skull.  While  the  person  by 
whom  he  was  discovered  went  for  assistance,  the  deceased  had  been 
turned  over  and  robbed  of  his  watch  and  money.  About  the  same 
time  Downing  was  seen  in  advance  of  the  spot  where  the  deceased 
lay  proceeding  homeward  and  leading  his  colt ;  and  a  few  minutes 
afterwards  two  men  were  seen  following  in  the  same  direction.  Sus- 
picion attached  to  Downing,  partly  from  his  interest  in  the  estate 
enjoyed  by  the  deceased,  and  he  was  put  upon  his  trial  for  this  sup- 
posed murder  ;  but  it  was  clear  that  he  had  no  motive  on  that  ac- 
count to  kill  the  deceased,  as  the  estate  was  not  to  come  to  him  un- 
til after  failure  of  issue  of  the  deceased's  wife,  to  whom  he  had  been 
married  several  years,  without  having  had  children;  so  that  it  was 
his  interest  that  the  way  should  not  be  opened  to  a  second  marriage. 
That  the  deceased  had  been  murdered  at  all,  was  a  highly  improba- 
ble conjecture,  and  it  was  far  more  probable  that  he  had  fallen  from 

his  horse  and  received  a  kick,  especially  as  his  hat  bore 
[  *139  ]     no  marks  of  mjury,  so  that  it  had  probably  fallen  off  be- 

*  Mittermtier,  ut  supra,  ch.  55,  57. 


TO   CIRCUMSTANTIAL  EVIDENCE.  105 

fore  the  infliction  of  the  -wounds  ;  that  the  deceased,  if  murdered  at 
all,  had  been  murdered  by  the  prisoner  was  in  the  highest  degree 
improbable,  considering  how  both  his  hands  must  have  been  employ- 
ed, nor  was  there  any  evidence  whatever  that  the  deceased  had  been 
robbed  by  the  prisoner.  It  thus  appeared,  that  these  accumulated 
circumstances,  of  supposed  inculpatory  presumption,  were  really  ir- 
relevant and  unconnected  with  any  corpus  delicti*.  The  prisoner 
was  acquitted  ;  and  it  is  instructive,  that  about  twelve  months  after- 
wards, the  mystery  of  the  robbery,  the  only  real  circumstance  of 
suspicion,  was  cleared  up.  A  man  was  apprehended,  upon  offering 
the  deceased's  watch  for  sale,  and  brought  to  trial  for  the  theft  of 
it  and  acquitted,  the  judge  thinking  that  he  ought  not  to  be  called 
upon,  at  so  distant  a  period,  to  account  for  the  possession  of  the  de- 
ceased's property,  which  he  might  have  purchased  from  some  other 
person,  or  otherwise  fairly  acquired,  without  being  able  to  prove  it 
by  evidence.  The  accused,  when  no  longer  in  danger,  acknowledg- 
ed that  ho  had  robbed  the  deceased,  whom  he  had  found  lying  drunk 
on  the  road,  as  he  believed  ;  but  that  he  had  concealed  the  watch, 
on  learning  that  it  was  supposed  that  the  deceased  had  been  mur- 
dered, to  prevent  suspicion  of  the  murder  from  attaching  to  him- 
self. 

A  farmer  was  tried  under  the  special  commission  for  Wiltshire, 
January  1831,  upon  an  indictment  which  charged  him  with  havint' 
feloniously  sent  a  threatening  letter,  which  was  alleged  to  have  been 
written  by  him.  That  the  letter  was  in  the  prisoner's  handwriting 
was  positively  deposed  by  witnesses  who  had  had  ample  means  of 
becoming  acquainted  with  it,  while  the  contrary  was  as  positively 
deposed  on  the  part  of  the  prisoner  by  numerous  witnesses 
equally  competent  to  speak  to  the  fact.  But  the  *scale  [  *140  ] 
appears  to  have  turned  by  the  circumstance  that  the  let- 
ter in  question,  and  two  others  of  the  same  kind  sent  to  other  per- 
sons, together  with  a  scrap  of  paper  found  in  the  prisoner's  bureau 
had  formed  one  sheet  of  paper  ;  the  ragged  edges  of  the  different 
portions  exactly  fitting  each  other,  and  the  water-mark  name  of  the 
maker,  which  was  divided  into  three  parts,  being  perfect  when  the 
portions  of  paper  were  united.  The  jury  found  t'jc  prisoner  guilty, 
and  he  was  sentenced  to  be  transported  for  fourteen  years.  The 
judge  and  jury  having  retired  for  a  few  minutes,  during  their  ab- 
sence the  prisoner's  son,  a  youth  about  eighteen  years  of  age,  was 

*  Rex  V.  Downioc,  Salop  Summer  Assizes,  1S22,  coram  Mr.  Juttice  Barley 

16 


106  RULES   OF   INDUCTION   SPECIALLY   APPLICABLE 

brought  to  the  table  by  the  prisoner's  attorney,  and  confessed  that 
he  had  been  the  writer  of  the  letter  in  question,  and  not  his  father. 
The  son  then  wrote  on  a  piece  of  paper  from  memory  a  copy  of  the 
contents  of  the  anonymous  letter,  which  on  comparison  left  no  doubt 
of  the  truth  of  his  statement.  The  writing  was  not  a  verbatim 
copy,  although  it  differed  but  little ;  and  the  bad  spelling  of  the 
original  was  repeated  in  the  copy.  The  original  was  then  handed  to 
him,  and  on  being  desired  to  do  so,  he  copied  it,  and  the  writing 
•was  exactly  alike.  Upon  the  return  of  the  learned  judge  the  cir- 
cumstances were  mentioned  to  him,  and  two  days  afterwards  the  son 
was  put  upon  his  trial  and  convicted  of  the  identical  offence  which  had 
been  imputed  to  the  father.  It  appeared  that  the  son  had  had  ac- 
cess to  the  bureau,  which  was  commonly  left  open.  The  writing  of 
the  letter  constituted  in  fact  the  corpus  delicti;  there  having  been 
no  other  evidence  to  inculpate  the  prisoner  as  the  sender  of  the  let- 
ter, which  would  however  have  been  the  natural  and  irresistible  in- 
ference had  he  been  the  writer.  The  correspondence  of  the  frag- 
ment of  paper  found  in  the  prisoner's  bureau  with  the  letter  in 
question,  and  with  the  two  others  of  the  same  nature  sent  to  other 

persons,  was  simply  a  circumstance  of  suspicion,  but  for- 
[  *141  ]     eign,  as  it  turned  out,  to  \hQ  factum  in  *question  ;  and 

considering  that  other  persons  had  access  to  the  bureau, 
its  weight  even  as  a  circutr stance  of  suspicion  seems  to  have  been 
overrated.* 

But  perhaps  one  of  the  most  extraordinary  and  instructive  cases 
of  this  kind  which  have  ever  occurred,  was  that  of  Abraham  Thorn- 
ton, who  was  tried  at  Warwick  Autumn  Assizes  1817,  before  Mr. 
Justice  Holroyd,  for  the  alleged  murder  of  a  young  woman,  Mary 
Ashford,  who  was  found  dead  in  a  pit  of  water,  about  seven  o'clock 
in  the  morning,  with  marks  of  violence  about  her  person  and  dress  ; 
from  which  it  was  supposed  that  she  had  been  violated  and  after- 
wards drowned.  On  the  bank  of  the  pit  were  found  the  deceased's 
bonnet  and  shoes,  and  a  bundle.  At  the  distance  of  forty  yards 
was  found  upon  the  grass  the  impression  of  an  extended  human 
figure,  with  blood  on  the  grass  near  to  the  centre  of  the  impression, 
and  a  large  quantity  of  blood  upon  the  ground  near  to  the  lower  ex- 
tremity of  the  impression ;  spots  of  blood  were  also  found  in  a  direc- 
tion leading  from  the  impression  to  the  pit  upon  a  footpath,  and 
about  a  foot  and  a  half  from  the  path  upon  the  grass  on  one  side  of 

*  Rex  V.  Isaac  Looker,  and  Rex  v.  Edward  Looker.  A.  R.  I831f  p.  9. 


TO    CIRCUMSTANTIAL   EVIDENCE.  107 

it.     When  the  body  was  found  there  was  no  vestige  of  any  footstep 
on  the  grass,  which  was  covered  with  dew  not  otherwise  disturbed 
than  by  the  blood ;  from  which  circumstance  it  was  insisted  that  the 
spots  of  blood  on  the  grass  must  have  fallen  from  the  body  of  the 
deceased  carried  in  some  person's  arms.     The  prisoner  and  the  de- 
ceased had  met  at  a  dance  on  the  preceding  evening,  at  a  public* 
house,  which  they  left  together  about  twelve  o'clock.     About  three 
in  the  morning  they  had  been  seen  talking  together  at  a  stile  near 
to  the  spot.     About  four  o'clock  in  the  morning  the  deceased  called 
at  the  house  of  Mrs.  Butler  at  Erdington,  where  she  had 
left  a  bundle  of  clothes  on  the  preceding  day  ;  she  *ap-     [  *142  ] 
peared  in  good  health  and  spirits,  changed  a  part  of  her 
dress  for  some  of  the  garments  which  she  had  left  there,  and  quitted 
the  house  in  about  a  quarter  of  an  hour.     Her  way  lay  across  cer- 
tain fields,  one  of  which  adjoined  that  in  Avhich  the  pit  was,  and  had 
been  newly  harrowed.     Soon  after  the  discovery  of  the  body,  there 
were  found  in  the  harrowed  ground  the  recent  marks  of  the  foot- 
steps of  the  prisoner  and  the  deceased,  which,  from  the  length  and 
depth  of  the  steps  indicated  that  there  had  been  running  and  pursuit, 
and  that  the  deceased  had  been  overtaken.     From  that  part  of  the 
harrowed  field  where  the  deceased  had  been  overtaken,  her  footsteps 
and  those  of  the  prisoner  proceeded  together  in  a  direction  towards 
the  pit  and  the  spot  where  the  impression  was  found,  until  the  foot- 
steps came  within  the  distance  of  forty  yards  from  the  pit,  Avhen, 
from  the  hardness  of  the  ground,  they  could  be  no  longer  traced. 
The  mark  of  a  man's  running  footsteps,  not  proved  however  to  have 
been  the  prisoner's,  were  also  discovered  in  a  direction  leading  from 
the  pit  across  the  harrowed  field  ;  from  which  it  was  contended  that 
the  accused  had  run  alone  in  that  direction  after  the  commission  of 
the  supposed  murder.     The  mark  of  a  man's  left  shoe   (also  not 
proved  to  have  been  the  prisoner's)  was  discovered  near  the  edge  of 
the  pit,  and  it  was  proved  that  the  prisoner  had  worn  right  and  left 
shoes.     On  the  prisoner's  shirt  and  breeches  were  found  stains  of 
blood,  and  he  acknowledged  that  he  had  had  sexual  intercourse  with 
the  deceased,  but  alleged  that   it  had  taken  place  with  her  own  con- 
sent.    The  defence  was  an  alibi.     The  deceased,  it  was  proved,  was 
successively  seen  after  leaving  Mrs.  Butler's  house  by  several  per- 
sons, proceeding  alone  in  a  direction  towards  her  own  home,  the  last 
of  whom  saw  her  within  a  quarter  of  an  hour  afterwards,  that  is  to 
say  before  or  about  half-past  four.     At  about  half-past  four,  and  not 


108  RULES   OF  INDUCTION  SPECIALLY   APPLICABLE 

later  than  twenty-five  minutes  before  five,  the  accused 
[  *143  ]  -was  seen  by  several  persons,  wholly  unacquainted  *witb 
him,  walking  a  lowly  and  leisurely  along  a  lane  leading 
in  an  opposite  direction  from  the  young  woman's  course  toward 
his  father's  house,  where  he  lived.  From  Mrs.  Butler's  house  to 
the  pit  was  a  distance  of  upwards  of  a  mile  and  a  quarter,  and 
from  the  pit  to  the  place  where  the  prisoner  was  first  seen  afeerwards 
was  a  distance  of  two  miles  and  a  half ;  so  that  upon  the  hypothesis 
of  his  guilt,  he  must  have  rejoined  the  deceased  after  she  left  Mrs. 
Butler's  house,  and  a  distance  of  upwards  of  three  miles  and  a 
quarter  must  have  been  traversed,  partly  by  the  deceased  and 
partly  by  the  accused,  and  the  pursuit,  the  criminal  intercourse, 
the  drowning,  and  the  deliberate  placing  of  the  deceased's  bonnet, 
shoes,  and  bundle,  must  have  taken  place  within  twenty-five  min- 
utes.  The  defence  was  set  up  at  the  instant  of  the  prisoner's 
apprehension,  which  took  place  within  a  few  hours  after  the  oc- 
currence of  the  event  which  formed  the  subject  of  the  accusa- 
tion, and  was  maintained  without  variation  before  the  coroner's  in- 
quest and  the  committing  magistrates,  and  also  upon  the  trial,  and  no 
inroad  was  made  on  the  credibility  cf  the  testimony  by  which  it  was 
supported.  The  various  time-pieces  to  which  the  witnesses  referred, 
and  which  differed  much  from  each  other,  were  carefully  compared 
on  the  day  after  the  occurrence  and  reduced  to  a  common  standard, 
so  that  there  could  be  no  doubt  of  the  real  times  as  spoken  to  by  the 
various  witnesses. 

It  was  not  too  much  to  assert  that  it  was  not  within  the  bounds  of 
possibility  that  the  prisoner  could  have  committed  the  crime  imputed 
to  him  ;  nevertheless  pubhc  indignation  was  so  strongly  excited  that 
his  acquittal  occasioned  great  dissatisfaction.  There  was  a  total  ab- 
sence of  all  conclusive  evidence  of  a  corpus  delicti,  which  the  jury  were 
required  to  infer  from  circumstances  of  apparent  suspicion.  The  de- 
ceased might  have  drowned  herself,  in  a  moment  of  bitter 
[  *144  ]  remorse,  after  parting  from  her  seducer,  *and  excited  to 
agonizing  reflection  by  the  sight  of  so  many  appalling  marks 
of  her  ruin.  It  was  possible  that  she  might  have  sat  down  to  change 
her  dancing-shoes  for  the  boots  which  she  had  worn  the  preceding  day 
and  carried  in  her  bundle,  and  fallen  into  the  water  from  exhaustion ; 
for  she  had  walked  to  and  from  market  in  the  morning,  had  exerted 
herself  in  dancing  in  the  evening,  and  had  been  wandering  all  night 
in  the  fields  without  food.  The  allegation  that  the  prisoner  had  vio- 
ated  the  deceased,  and  therefore  had  a  motive  to  destroy  her,  was 


TO    CIKCUMSTANTIAL   EVIDENCE.  109 

mere  conjecture  ;  and  from  the  circumstance  of  her  having  been  out 
all  night  with  the  prisoner,  with  whom  she  was  previously  unacquainted, 
and  from  the  state  of  the  garments  which  she  took  off  at  Mrs.  But- 
ler's, as  compared  with  those  for  which  she  exchanged  them,  it  was 
pretty  clear  that  the  sexual  intercourse  had  taken  place  before  she 
called  there,  at  which  time  sho  made  no  complaint,  but  appeared 
composed  and  cheerful.  Again,  the  inference  contended  for,  from 
the  state  of  the  grass,  with  drops  of  blood  upon  it  where  the  dew 
had  not  been  disturbed,  appeared  to  be  equally  groundless  and  incon- 
clusive ;  for  there  was  no  proof  that  the  dew  had  not  been  deposited 
after  the  drops  of  blood ;  and  it  clearly  appeared  that  the  footsteps 
could  not  be  traced  on  other  parts  of  the  grass  where,  beyond  all 
doubt,  the  parties  had  been  together  in  the  course  of  the  night. 
Now,  suppose  that  the  alibi  had  been  incapable  of  satisfactory  proof, 
that  the  prisoner  had  not  been  seen  after  parting  from  the  deceased, 
and  that  the  inconclusiveness  of  the  inference  drawn  from  the  dis. 
covery  of  drops  of  blood  on  the  grass,  where  there  were  no  footmarks 
had  not  been  manifested  from  the  absence  of  those  marks  in  other 
places  where  the  deceased  had  unquestionably  been, — the  guilt  of 
the  prisoner  would  probably  have  been  considered  indubitable,  and 
his  execution  been  too  certain  ;  and  yet  these  exculpa- 
tory circumstances  *were  entirely  casual,  collateral,  and  [  *145  ] 
independent  of  the  facts  which  were  supposed  to  be  clearly 
indicative  of  guilt.* 

Rule  2. — The  burthen  of  proof  is  always  on  the  party  who  as- 
serts the  existence  of  any  fact  ivhich  infers  leyal  accountability .^[ 
This  is  a  universal  rule  of  jurisprudence,  founded  upon  evident 
principles  of  wisdom  and  justice  ;  and  it  is  a  necessary  consequence, 
that  the  affirmant  party  is  not  absolved  from  its  obligation  because  of 
the  difficulty  which  may  attend  its  application.  No  man  can  be 
justly  deprived  of  his  social  rights  but  upon  satisfactory  proof  that 
he  has  committed  some  act  which  legally  involves  the  forfeiture  of 
them.  The  law  respects  the  status  in  quo,  and  regards  every  man 
as  legally  innocent  until  the  contrary  be  proved.  To  prove  a  nega. 
tive  is  in  most  cases  difficult,  in  many  impossible.     Criminality  there- 

•  The  friends  of  the  deceased  hrought  an  appeal  of  death,  in  wliicli  the  defendant 
tendered  wagor  of  battle,  and  the  proceedings  led  to  tlic  abolition  by  St.  59  G.  III.  c. 
48.  of  that  barbarous  relic  of  feudal  times;  see  Ashford  v.  Thornton,  1  B.  and 
Aid.  p.  405,  and  Observations  upon  the  case  of  Abraham  Thornton,  by  Edward  Hoi* 
royd,  Esq.,  containing  the  judge's  notes  of  the  trial. 

t  1  Starkie's  L.  of  Ev.  162,     1  GreenleaPs  L.  of  Ev.  c,  3. 


110  RULES    OF   INDUCTION    SPECIALLY    APPLICABLE 

fore  is  never  to  be  presumed.  But  nevertheless  the  operation  of 
this  rule  may,  to  a  certain  extent,  be  modified  by  circumstances 
which  create  a  counter  obligation,  and  shift  the  onus  prohandi.  It 
follows,  from  the  very  nature  of  circumstantial  evidence,  that,  in 
drawing  an  inference  or  conclusion  as  to  the  existence  of  a  particu- 
lar fact  from  other  facts  that  are  proved,  regard  must  always  be  had 
to  the  nature  of  the  particular  case,  and  the  facility  that  appears  to 
be  afforded  either  of  explanation  or  contradiction.*  It  is  therefore 
a  qualification  of  the  rule  in  question,  that  in  every  case  the  onus 
prohandi  lies  on  the  person  who  is  interested  to  support  his  case  by 
a  particular  fact,  which  lies  more  particularly  within  his  own  know- 
ledge, or  of  which   he  is  supposed  to  be  cognizant.     This  indeed 

is  not  allowed  to  supply  the  want  of  necessary  proof, 
[  *146  ]     *\vhether  direct  or  presumptive,  against  a  defendant  of  the 

crime  with  which  he  is  charged  ;  but  when  such  px'oof  has 
been  given,  it  is  a  rule  to  be  applied  in  considering  the  weight  of  the 
evidence  against  him,  whether  direct  or  presumptive,  when  it  is  un- 
opposed, unrebutted,  or  not  weakened  by  contrary  evidence,  which 
it  would  be  in  the  defendant's  power  to  produce,  if  the  fact  di- 
rectly or  presumptively  proved  were  not  true.f  It  has  been  well  ob- 
served, that  in  such  case  we  have  something  like  an  admission  that 
the  presumption  is  just.^  "In  drawing  an  inference  or  conclusion, 
regard  must  always  be  had,"  said  Mr.  Justice  Abbot,§  "  to  the  na- 
ture of  the  particular  case,  and  the  facility  that  appears  to  be  afford- 
ed either  of  explanation  or  of  contradiction.  No  person  is  to  be  re- 
quired to  explain  or  contradict,  until  enough  has  been  proved  to 
warrant  a  reasonable  and  just  conclusion  against  him,  in  the  absence 
of  explanation  or  contradiction  ;  but  when  such  proof  has  been  given, 
and  the  nature  of  the  case  is  such  as  to  admit  of  explanation  or  con- 
tradiction, if  the  conclusion  to  which  the  proof  tends  be  untrue,  and 
the  accused  offers  no  explanation  or  contradiction,  can  human  reason 
do  otherwise  than  adopt  the  conclusion  to  which  the  proof  tends  ? 
The  premises  may  lead  more  or  less  strongly  to  the  conclusion,  and 
care  must  be  taken  not  to  draw  the  conclusion  hastily ;  but  in  mat- 
ters that  concern  the  conduct  of  men,  the  certainty  of  mathematical 
evidence  cannot  be  required  or  expected ;  and  it  is  one  of  the  pecu- 
liar advantages  of  our  jurisprudence,  that  the  conclusion  is  to  be  drawn 

*  Per  Mr.  Justice  Abbott  in  Rex  v.  Burdett,  4  B.  and  Aid.  161. 
t  Per  Mr.  Justice  Holroyd  in  Rex  v.  Burdett,  4  B.  and  Aid.  140. 
X  per  Mr.  Justice  Best,  ib, 
k  Ibid. 


TO   CIRCUMSTANTIAL  EVIDENCE.  Ill 

bj  the  unanimous  judgment  and  conscience  of  twelve  men  conver- 
sant with  the  affairs  and  business  of  life,  and  who  know  that  when 
reasonable  doubt  is  entertained,  it  is  their  duty  to  acquit ;  and  not 
of  one  or  more  lawyers  whose  habits  might  be  suspected 
of  *leading  them  to  the  indulgence  of  too  much  subtlety  [  *147  ] 
and  refinement."  To  the  same  efiect  Lord  Chief  Justice 
Tindal,  on  a  trial  for  high-treason,  said,  "  that  the  offence  charged 
against  the  prisoner  must  be  proved  by  those  who  make  the  charge. 
The  case  must  depend  not  upon  what  proof  occurs  on  the  part  of  the 
prisoner,  except  so  far  as  it  contradicts  or  breaks  down  the  evidence 
given  for  the  Crown.  It  is  not  however  an  unreasonable  thing,  and 
it  daily  occurs  in  all  investigations,  both  civil  and  criminal,  that  if 
there  is  a  certain  appearance  of  suspicion  made  out,  which  involves  a 
party  in  a  considerable  state  of  suspicion,  he  should,  for  his  own  sake 
and  safety,  state  what  the  circumstances  were,  if  possible  to  reconcile 
the  suspicious  appearances  with  perfect  innocence.* 

It  is  a  necessary  consequence  of  this  rule,  rather  than  a  substan- 
tive rule,  that  the  corpus  delicti  must  be  clearly  proved  before  any 
effect  is  attached  to  circumstances  supposed  to  be  inculpatory  of  a 
particular  individual ;  but  this  is  a  branch  of  the  subject  of  so  much 
importance  and  of  such  comprehensive  extent,  as  to  require  consider- 
ation in  a  separate  chapter. 

Rule  3. — In  all  cases,  ivhether  of  direct  or  circumstantial  evi- 
dence, the  best  evidence  must  he  adduced  which  the  nature  of  the  case 
admits.  The  suppression  or  non-production  of  pertinent  and  cogent 
evidence  necessarily  raises  a  strong  presumption  against  the  party 
who  withholds  such  evidence  when  he  has  it  in  his  power  to  produce 
it ;  of  which  some  interesting  exemplifications  appear  in  other  parts 
of  this  Essay.f  This  rule  applies  a  fortiori  to  circumstantial  evi- 
dence, a  kind  of  proof  which,  for  reasons  which  have 
been  *already  urged,  is  inherently  inferior  to  direct  and  [  *148  ] 
positive  testimony  ;  and  therefore  whenever  such  evidence 
is  capable  of  being  adduced,  the  very  attempt  to  substitute  a  de- 
scription of  evidence  not  of  the  same  degree  of  force,  necessarily 
creates  a  suspicion  that  it  is  withheld  from  corrupt  and  sinister  mo- 
tives. $     Nor  is  the  application  of  the  rule  confined  to  the  proof  of 

•  Reg  I?.  Frost,  Monmouth  Special  Commission,  January  1840  ;  and  see  the  lan- 
guage of  Lord  Ellenborongh  in  Rex  v.  Despard,  28  St.  Tr.  521  ;  and  in  Hex  v.  Wat- 
eon,  32  ib.  583;  and  that  of  Le  Blanc  J.  in  Rex  v.  Mellor  and  others,  31  St.  Tr.  1032. 

t  See  ante,  ch.  iii.  s.  7. 

%  See  ante,  p.  31. 


112  RULES   OF   INDUCTION   SPECIALLY  APPLICABLE 

the  principal  fact ;  it  is  "  the  master  rule  which  governs  all  the  sub- 
ordinate rules,"*  and  applies  alike  to  the  proof  of  every  individual 
constituent  fact,  whether  principal  or  subordinate.  Thus,  where  on 
the  trial  of  a  woman  for  the  murder  of  her  brother,  a  child  about 
eight  years  of  age,  by  poison,  the  sexton  proved  the  interment  on 
the  29th  of  June,  and  the  exhumation  on  the  12th  of  August  follow- 
ing, of  a  body  which  he  believed  to  be  that  of  the  deceased,  from- 
the  coffin-plate,  and  from  the  place  from  which  he  had  exhumed  it, 
but  not  having  seen  the  body  in  the  coffin  at  the  time  of  burial,  he 
could  not  recognize  it,  independently  of  these  circumstances,  on  ac- 
count of  its  state  of  decay,  the  learned  judge  refused  to  receive  evi 
deuce  of  the  contents  of  the  coffin-plate,  on  the  ground  that  being 
removable  it  ought  to  have  been  produced,  and  there  being  no  other 
evidence  of  identity  he  stopped  the  case.f 

Considering  the  inherent  infirmity  of  human  memory,  in  the  fair 
construction  and  application  of  this  rule,  evidence  ought  in  all  crim- 
inal cases,  and  a  fortiori  in  cases  of  circumstantial  evidence,  to  be 
received  with  distrust,  wherever  any  considerable  time  has  elapsed 
since  the  commission  of  the  alleged  offence.  The  justice  and  efficacy 
of  punishment,  and  more   especially  of  capital  punishment,  inflicted 

after   the   lapse   of  any  considerable   interval,  at  least 
[  *149  ]     where  the  offender  has  not  withdrawn  himself  from  *the 

reach  of  justice,  are  more  than  questionable. 4:  An  un- 
avoidable consequence  of  great  delay  is,  that  the  party  is  deprived 
of  the  means  of  vindicating  his  innocence,  or  of  proving  the  attend- 
ant circumstances  of  extenuation  ;  the  crime  itself  becomes  forgotten, 
or  is  remembered  but  as  matter  of  tradition,  and  the  offender  may 
have  become  a  different  moral  being:  in  such  circumstances  punish- 
ment can  seldom,  perhaps  never,  be  efficacious  for  the  purpose  of 
example.  On  these  accounts  judges  and  juries  are  always  reluctant 
to  convict  parties  charged  with  offences  committed  long  previously.  § 
Rule  4. — In  order  to  justify  the  inference  of  legal  guilt  from  cir- 
cumstantial evidence,  the  existence  of  the  inculpatory  facts  must  be 
absolutely  incompatible  with  the  innocence  of  the  accused,  and  inca- 
pable of  explanation  upon  any  other  reasonable  hypothesis  than  that 

*  Burke's  works,  ut  supra,  ii.  618.     Mittermaier,  ut  supra,  ch.  57. 

t  Reg.  V.  Edge,  Chester  Sp.  Ass.  1842,  coram  Mr.  Baron  Maule. 

t  See  Rex  v.  Home,  executed  at  Nottingham  in  1759,  for  the  murder  of  his  natu- 
ral child  forty  years  before  ;  4  Cel.  Trials,  396  ;   and  Rex  v.  Wall,  28  St.  Tr.  51. 

§  Rexu.  Clewes  ut  supra  ;  and  see  Rex  v.  Roper,  tried  at  Leicester  summer  assi- 
zes, 1836,  for  a  murder  committed  thirty-four  years  before,  A.  R.  1836. 


TO   CIRCUMSTANTIAL  EVIDENCE.  113 

of  Ms  guilt.  This  is  the  fundamental  rule,  the  experimentum  crucis 
by  which  the  relevancy  and  effect  of  circumstantial  evidence  must 
be  estimated.  The  awards  of  penal  law  can  be  justified  only  when 
the  strength  of  our  convictions  is  equivalent  to  moral  certainty ; 
which,  as  we  have  seen,  is  that  state  of  the  judgment,  grounded 
upon  an  adequate  amount  of  appropriate  evidence,  which  induces  a 
man  of  sound  mind  to  act  without  hesitation  in  the  most  important 
concerns  of  human  life.  In  cases  of  direct  credible  evidence,  that 
degree  of  assurance  immediately  and  necessarily  ensues  ;  but  in 
estimating  the  effect  of  circumstantial  evidence,  there  is  of  neces- 
sity an  ulterior  intellectual  process  of  inference  which 
constitutes  an  essential  element  of  moral  certainty.  *The  [  *150  ] 
most  important  part  of  the  inductive  process,  especially 
in  moral  inquiries,  is  the  correct  exercise  of  the  judgment  in  draw- 
ing the  proper  inference  from  the  known  to  the  unknown,  from  the 
facts  proved  to  the  factum  probandum.  A  number  of  secondary 
facts  of  an  inculpatory  moral  aspect  being  given,  the  problem  is,  to 
discover  their  causal  moral  source,  not  by  arbitrary  assumption,  but 
by  the  application  of  the  principles  of  experience  in  relation  to  the 
immutable  laws  of  human  nature  and  conduct.  It  is  not  enough, 
however,  that  a  particular  hypothesis  will  explain  all  the  phenomena  ; 
nothing  must  be  inferred  because,  if  true,  it  would  account  for  the 
facts  ;*  and  if  the  circumstances  are  equally  capable  of  solution  upon 
any  other  reasonable  hypothesis,  it  is  manifest  that  their  true  moral 
cause  is  not  exclusively  ascertained,  but  remains  in  uncertainty ;  and 
they  must  therefore  be  discarded  as  conclusive  presumptions  of  guilt. 
Every  other  possible  supposition  by  which  the  facts  may  be  explained 
consistently  with  the  hypothesis  of  innocence  must  be  rigorously  ex- 
amined and  successively  eliminated ;  and  only  when  no  other  suppo- 
sition will  reasonably  account  for  all  the  conditions  of  the  case,  can 
the  conclusion  of  guilt  be  legitimately  adopted.f  In  strict  conform- 
ity with  these  sound  principles  of  reasoning  and  inference.  Lord 
Chief  Baron  Macdonald  said,  that  the  nature  of  circumstantial  evi- 
dence was  this,  that  the  jury  must  be  satisfied  that  there  is  no  ration- 
al mode  of  accounting  for  the  circumstances,  but  upon  the  suppo- 
eition  that  the  prisoner  is  guilty  ;f  and  Mr.  Baron  Alderson  in  an- 
other case,  with  more  complete  exactness,  said,  that  to  enable  the 

*  Tli(?orie  Analytique  des    Probabilities  par  Laplace,  Introdactiou,   cxxx.  2. 
Brougham's  Nat.  Theol  p.  164. 
t  See  Mittermaier,  ut  supra,  ch.  69. 
t  Rex  V.  Patch,  Sarrey  spring  assizes,  1806. 

17 


114  RULES   OF   INDUCTION   SPECIALLY   APPLICABLE 

jury  to  bring  in  a  verdict  of  guilty,  it  was  necessary,  not 
[  '151  ]     only  that  it  sliould  be  a  rational  conviction,  *but  that  it 

should  be  the  only  rational  conviction  which  those  circum- 
stances would  enable  them  to  draw.*  If  the  hypothesis  fulfills  all 
the  required  conditions,  then  the  conclusion  is  no  longer  a  gratuitous 
assumption,  but  becomes  as  it  were  incorporated  with  and  part  of  the 
induction  ;  and  thus  an  additional  test  is  obtained,  by  which,  as  by 
the  application  of  a  theorem  of  verification,  the  conclusion  may  be 
tested,  and  if  true  corroborated  and  confirmed.  Assuming  the  truth 
of  the  conclusion,  the  previous  method  of  proceeding  may  be  revers- 
ed, and  we  can  reason  from  cause  to  efiect.f  The  conclusion,  if  it 
be  true,  will  of  necessity  harmonize  with,  and  satisfactorily  account 
for,  all  the  facts,  to  the  exclusion  of  every  other  reasonable  hypo- 
thesis. In  the  investigation  of  physical  phenomena,  no  injurious 
consequence  ensues,  if  an  erroneous  conclusion  be  formed  as  to  their 
mutual  connecting  relations  ;  whereas  in  moral  investigation,  the 
discovery  of  a  casual  antecedent  constitutes  the  substantive  matter 
of  inquiry,  and  erroneous  conclusions  may  be  fatally  dangerous.  $ 

In  the  application  of  this  rule,  it  is  essential  that  not  only  the  ve- 
rity of  the  facts,  but  their  alleged  mutual  relations,  should  be  sub- 
mitted to  the  most  rigorous  scrutiny  ;  and  that  every  possible  objec- 
tion to  the  correctness  and  relevancy  of  the  alleged  inferences  from 
them  should  be  boldly  advanced  and  fearlessly  discussed.  It  was 
profoundly  remarked  by  Milton,  that  a  man  may  be  a  heretic  in  the 
truth.  "  Things,"  says  Bacon,  "  all  have  their  first  or  second  agi- 
tation ;  if  they  be  not  tossed  upon  the  arguments  of  counsel,  they 
will  be  tossed  upon  the  waves  of  fortune."     No  one  can  witness  the 

proceedings  of  our  superior  courts  of  criminal  jurisdic- 
[  *152  ]  '  tion  without  being  struck  with  the  anxious  *desire  to  do 

justice  which  is  conspicuous  in  all  their  proceedings,  and 
the  almost  invariable  correctness  of  their  determinations.  An  En- 
glishman may  apply  to  them  with  becoming  pride  the  eulogium  pro- 
nounced by  a  distinguished  foreign  lawyer,  who  declares  that  our 
higher  courts  of  dvil  judicature  "  generally,  and  with  rare  excep- 
tions, present  the  image  of  the  sanctity  of  a  temple,  where  truth  and 
justice   seem  to  be  enthroned,  and  to  be  personified  in  their   de- 

•  Rex  V.  Hodges,  2  Lewin'a  C.  C.  227. 

t  Stewart's  El.  ii.  346. 
t  Brougham's  Nat,  Theol.  ut  supra.    Stewart's  El.  vol.  ii.  ch.  I,  2  and  4. 


TO   CIRCUMSTANTIAL   EVIDENCE.  115 

crees*."  But  it  was  a  great  blot  upon  our  legal  system  that,  prior 
to  the  Statute  6  and  7  William  IV.  c.  114,  persons  accused  of  of- 
fences of  a  higher  degree  than  misdemeanours,  with  the  exception  of 
the  particular  crime  of  treason,  were  permitted  only  the  partial  as- 
sistance of  counsel,  who  could  not  address  the  jury  upon  the  facts 
and  substantial  merits  of  the  case,  however  complicated,  or  however 
penal  in  their  consequences.  It  may  assuredly  be  affirmed  that  the 
ends  of  public  justice,  not  less  than  the  safety  of  individuals,  have 
been'greatly  promoted  by  the  change. 

Another  great  improvement  has  been  introduced  into  our  criminal 
jurisprudence  by  the  late  Statute  11  and  12  Victoria,  c.  78,  which 
creates  a  court  of  appeal  for  the  decision  of  difficult  questions  of  law 
arising  in  any  court  of  oyer  and  terminer  and  general  gaol-delivery 
or  court  of  quarter  sessions ;  but  it  yet  remains  a  reproachful  anom- 
aly, that  there  is  no  legal  mode  by  which  the  verdict  of  a  jury  in 
criminal  cases  can  be  reviewed  and  a  new  trial  awarded,  even  in  the 
most  palpable  case  of  error.  It  is  impossible  to  acknowledge  too 
strongly  the  anxious  attention  which  the  Judges  give  to  investiga- 
tions of  this  nature,  and  the  readiness  with  which  they,  as  well  as 
the  pubhc  functionaries  whose  duty  it  is  to  advise  the  Crown  in  mat- 
ters of  this  kind,  in  the  last  resort,  are  disposed  to  attend,  even  af- 
ter verdict,  to  well-considered  and  credibly  attested  objec- 
tions. *But  the  concurrence  of  the  Judges  in  the  previ-  [  *153  ] 
ous  proceedings,  the  claims  of  public  security,  the  dan- 
gers of  mistaken  tenderness,  and  of  giving  countenance  to  distrust 
of  the  tribunals, — these  and  other  considerations  render  the  revision 
of  the  deliberate  verdict  of  a  jury  by  the  present  extra-judicial, 
anomalous,  and  ill-adapted  course  of  proceeding,  a  duty  of  the  most 
delicate  and  perplexing  nature. 

Rule  5. — If  there  he  any  reasonable  doubt,  as  to  the  reality  of 
the  connection  of  the  circumstances  of  evidence  with  the  factum  pro- 
bandum,  or  as  to  the  completeness  of  the  proof  of  the  corpus  delicti, 
or  as  to  the  proper  conclusion  to  be  drawn  from  the  evidence,  it  is 
safer  to  err  in  acquitting  than  in  convicting  ;  or,  as  the  maxim  is 
more  popularly  expressed,  it  is  better  that  ten  guilty  persons  should 
escape,  rather  than  one  innocent  man  should  suffer.  This  rule  fol- 
lows irresistibly  as  a  deduction  from  the  consideration  of  the  nume- 
rous fallacies  necessarily  incidental  to  the  formation  of  the  judgment 
on  indirect  evidence  and  contingent  probabilities,  and  from  the  im- 

*  Kent's  Comm.  on  American  Law.  i.  497. 


116  RULES   OF   INDUCTION   SPECIALLY   APPLICABLE 

possibility  in  all  cases  of  drawing  the  line  between  moral  certainty 
and  doubt*.  In  questions  of  civil  right  the  magistrate  is  obliged  to 
decide  according  to  the  greatest  amount  of  probability  in  favour  of 
one  or  other  of  the  litigant  parties ;  but  where  hfe  or  liberty  are  in 
the  balance,  it  is  neither  just  nor  necessary  that  the  accused  should 
be  convicted  but  upon  conclusive  evidence.  While  it  is  certain  that 
circumstantial  evidence  is  frequently  most  convincing  and  satisfacto- 
ry, it  must  never  be  forgotten,  as  was  remarked  by  that  wise  and 
upright  magistrate.  Sir  Matthew  Hale,  that  "  persons  really  inno- 
cent may  be  entangled  under  such  presumptions,  that  many  times 
carry  great  probabilities  of  guiltf ;"  wherefore,  as  he  justly  con- 
cludes, "  this  kind  of  evidence  must  be  very  warily 
[  *154  ]  pressed."  Many  adverse  appearances  may  *be  out- 
weighed by  a  single  favourable  one,  and  all  the  probabili- 
ties of  the  case  may  not  be  before  the  court.  Paley  controverts  the 
maxim,  and  urges  that  "  he  who  falls  by  a  mistaken  sentence  may 
be  considered  as  falling  for  his  country,  while  he  suffers  under  the 
operation  of  those  rules,  by  the  general  effect  and  tendency  of  which 
the  welfare  of  the  community  is  maintained  and  upheldf ."  There 
is  no  judicial  enormity  which  may  not  be  palliated  or  justified  under 
colour  of  this  execrable  doctrine,  which  is  calculated  to  confound  all 
moral  and  legal  distinctions ;  its  sophistry,  absurdity,  and  injustice 
have  been  unanswerably  exposed  by  one  of  the  ablest  of  lawyers  and 
most  upright  of  menj.  An  erroneous  sentence  is  calculated  to  pro- 
duce incalculable  and  irreparable  mischief  to  individuals,  to  destroy 
all  confidence  in  the  justice  and  integrity  of  the  tribunals,  and  to 
introduce  an  alarming  train  of  social  evils  as  the  inevitable  result. 
No  rule  of  procedure  is  more  clearly  and  firmly  established,  as  one 
of  the  great  safeguards  of  truth,  than  the  rule  in  question  ;  and  it 
is  the  invariable  practice  of  judges  to  advise  juries  to  acquit,  when- 
ever they  entertain  any  fair  and  reasonable  doubt.  The  doubt  how- 
ever must  be  not  a  trivial  one,  such  as  speculative  ingenuity  may 
raise,  but  a  conscientious  one  which  may  operate  upon  the  mind  of  a 
rational  man  acquainted  with  the  affairs  of  life§. 

It  would  have  been  easy  to  extend  this  essay  by  a  multiplication 
of  rules ;  but  it  will  be  found  that  other  rules   areredundant,  or  sub- 

*  Bonnier,  ut  supra,  p.  604.  t  2  P.  C.  ch.  39. 

t  Mor.  and  Pol.  Phil.  b.  vi.  ch.  9. 

J  Romilly's  Obs.  on  the  C.  L.  of  England,  p.  72.    Best  on  Prea.  p.  292. 
§  Per  Mr.  Baron  Parke  in  Reg.  v.  Tawell,  ut  supra. 


TO   CIRCUMSTANTIAL  EVIDENCE.  117 

stantially  comprehended  under  those  which  have  been  given ;  and 
there  is  little  reason  to  doubt  that,  faithfully  and  judiciously  applied, 
they  will  lead  to  conclusions  which  will  seldom  or  never 
be  found  erroneous.  *It  is  in  fact  from  the  practical  dis-  [  *155  ] 
regard  of  those  rules,  rather  than  from  the  nature  of  the 
subject,  that  have  proceeded  those  lamentable  failures  and  viola- 
tions of  justice,  which  have  occasionally  disgraced  the  pages  of  judi- 
cial history. 


118  PROOF  OF  THE  CORPUS  DELICTI  BY 


[*156]  'CHAPTER    VII. 

TROOF    OF    THE    CORPUS    DELICTI 


SECTION    1. 

GENERAL  DOCTRINE   AS   TO   THE    PROOF   OF  THE   CORPUS   DELICTI. 

Every  allegation  of  the  commission  of  legal  crime  involves  the 
estahlishment  of  two  distinct  propositions ;  namely,  that  an  act  has 
been  committed  from  which  legal  responsibility  arises,  and  that  the 
guilt  of  such  act  attaches  to  a  particular  individual. 

Such  a  complication  of  difficulties  occasionally  attends  the  proof 
of  crime,  and  so  many  cases  have  occurred  of  convictions  for  alleged 
offences  which  have  never  existed,  that  it  is  a  fundamental  and  in- 
flexible rule  of  legal  procedure,  of  universal  obligation,  to  require 
satisfactory  proof  of  the  corpus  delicti,  either  by  direct  evidence  or 
by  cogent  and  irresistible  grounds  of  presumption*,  before  it  is  per- 
mitted to  adduce  evidence  tending  to  implicate  any  particular  indi- 
vidual. If  it  be  objected  that  rigorous  proof  of  the  corpus  delicti 
is  sometimes  unattainable,  and  that  the  effect  of  exacting  it  must  bo, 
that  crimes  will  occasionally  pass  unpunished,  it  must  be  admitted 
that  such  may  possibly  be  the  result ;  but,  it  is  answered  that,  where 
there  is  no  proof,  or,  which  is  the  same  thing,  no  sufficient 
[  'IST  ]  legal  proof  of  crime,  there  can  be  no  legal  *criminality. 
In  penal  jurisprudence  there  can  be  no  middle  term  ;  the 
party  must  be  absolutely  and  unconditionally  guilty  or  not  guilty. 
Nor  under  any  circumstances  can  considerations  of  supposed  expe- 
diency ever  supersede  the  immutable  obhgations  of  justice  ;  and  oc- 
casional impunity  of  crime  is  an  evil  of  far  less  magnitude  than  the 
punishment  of  the  innocent.  Such  considerations  of  mistaken  poli- 
cy led  some  of  the  writers  on  the  civil  and  canon  laws  to  modify 
their  rules  of  evidence,  according  to  the  difficulties  of  proof  inciden- 
tal to  particular  crimes,  and  to  adopt  the  execrable  maxim,  that  the 
more  atrocious  was  the  offence,  the  slighter  was  the  proof  necessary ; 

*  Rex  V.  Burdett,  4  B.  and  Aid.  123. 


CIRCUMSTANTIAL   EVIDENCE.  119 

in  atrocissimis  leviores  conjecturce  sufficiunt,  et  licet  judici  jura 
transgredi.  Such  indeed  is  the  logic  and  inevitable  consequence, 
when,  from  ■whatever  motive,  the  plea  of  expediency  is  permitted  to 
influence  judicial  integrity.  The  clearest  principles  of  justice  re- 
quire, that  whatever  the  nature  of  the  crime,  the  amount  and  inten- 
sity of  the  proof  shall  in  all  cases  be  such  as  to  produce  the  fall  as- 
surance of  moral  certainty.  Lord  Chancellor  Nottingham,  on  the 
trial  of  Lord  Cornwallis,  said,  "  The  fouler  the  crime  is,  the  clearer 
and  the  plainer  ought  the  proof  to  be*."  "  The  more  flagrant  the 
crime  is,"  said  Mr.  Baron  Legge,  "  the  more  clearly  and  satisfac- 
torily you  will  expect  that  it  shall  be  made  out  to  youf ."  Mr.  Jus- 
tice Holroyd  said,  that  "  the  greater  the  crime  the  stronger  is  the 
proof  required  for  conviction  J."  In  another  case  Mr.  Justice  Bay- 
ley,  in  even  stronger  terms,  told  the  jury  that,  "  in  proportion  to 
the  heinousness  and  malignity  of  the  offence,  there  ought  to  be  a 
reasonable  degree  of  certainty  in  the  proof,  and  that  where  there  is 
nothing  but  the  evidence  of  circumstances,  those  circum- 
stances ought  to  be  closely  and  necessarily  *connected,  [  *158  ] 
and  to  be  made  out  as  clear  as  if  there  were  absolute  and 
positive  proof §." 


SECTION    2. 

PROOF   OF   THE   CORPUS   DELICTI   BY   CIRCUMSTANTIAL   EVIDENCE. 

But  it  is  clearly  established,  that  it  is  not  necessary  that  the  cor- 
pus delicti  should  be  proved  by  direct  and  positive  evidence,  and  it 
would  be  most  unreasonable  to  require  such  evidence.  Crimes,  and 
especially  those  of  the  worst  kinds,  are  naturally  committed  at  chosen 
times,  and  in  darkness  and  secrecy  ;  and  human  tribunals  must  act 
upon  such  indications  as  the  circumstances  of  the  case  present  or 
admit,  or  society  must  be  broken  up.  Nor  is  it  very  often  that  ade- 
quate evidence  is  not  afforded  by  the  attendant  and  surrounding 
facts,  to  remove  all  mystery,  and  to  afford  such  a  reasonable  degree 
of  certainty  as  men  are  daily  accustomed  to  regard  as  sufiieient  in 
the  most  important  concerns  of  life  :  to  expect  more  would  bo  equally 

*  7  St.  Tr.  149,  and  see  Rex  v.  Crossley,  26  St.  Tr.  218. 

t  Rex  V.  Blandy,  18  St.  Tr.  1186. 

t  Rex  V.  Hobson,  1  Lewin'g  C.  C.  261. 

^  Rex  V.  Downing,  Salop  Summer  Assizes,  1822 


120  PROOF   OF  THE   CORPUS   DELICTI   BY 

needless  and  absurd.  In  Burdett's  case*  this  subject  underwent 
much  discussion,  and  was  elaborately  treated  by  the  Bench.  Mr. 
Justice  Best  said,  "  When  one  or  more  things  are  proved  from  which 
experience  enables  us  to  ascertain  that  another,  not  proved,  must 
have  happened,  we  presume  that  it  did  happen  as  well  in  criminal  as 
in  civil  cases.  Nor  is  it  necessary  that  the  fact  not  proved  should  be 
established  by  irrefragable  inference.  It  is  enough  if  its  existence 
be  highly  probable,  particularly  if  the  opposite  party  has  it  in  his 
power  to  rebut  it  by  evidence,  and  yet  offers  none  ;  for  then  we  have 
something  like  an  admission  that  the  presumption  is  just.     It  has 

been  solemnly  decided,  that  there  is  no  difference  between 
[  *159  ]     *the  rules  of  evidence  in  civil  and  criminal  cases.     If  the 

rules  of  evidence  prescribe  the  best  course  to  get  at  truth, 
they  must  be  and  are  the  same  in  all  cases  and  in  all  civilized  coun- 
tries. There  is  scarcely  a  criminal  case  from  the  highest  down  to 
the  lowest  in  which  courts  of  justice  do  not  act  upon  this  principle." 
His  Lordship  added,  "  It  therefore  appears  to  me  quite  absurd  to  state 
that  we  are  not  to  act  upon  presumption.  Until  it  pleases  Provi- 
dence to  give  us  means  beyond  those  our  present  faculties  afford  of 
knowing  things  done  in  secret,  we  must  act  on  presumptive  proof, 
or  leave  the  worst  crimes  unpunished.  I  admit,  where  presumption 
is  intended  to  be  raised  as  to  the  corpus  delicti,  that  it  ought  to  be 
strong  and  cogent."  Mr.  Justice  Holroyd  said,  "  No  man  is  to  be 
convicted  of  any  crime  upon  mere  naked  presumption.  A  light  or 
rash  presumption,  not  arising  either  necessarily,  probably,  or  reason- 
ably, from  the  facts  proved,  cannot  avail  in  law.  But  crimes  of  the 
highest  nature,  more  especially  cases  of  murder,  are  established,  and 
convictions  and  executions  thereupon  frequently  take  place  for  guilt 
most  convincingly  and  conclusively  proved,  upon  presumptive  evi- 
dence only  of  the  guilt  of  the  party  accused  :  and  the  well-being  and 
security  of  society  much  depend  upon  the  receiving  and  giving  due 
effect  to  such  proof.  The  presumptions  arising  from  those  proofs 
should  no  doubt,  and  most  especially  in  cases  of  great  raagnitnde,  be 
duly  and  correctly  weighed.  They  stand  only  as  proofs  of  the  facts 
presumed  till  the  contrary  be  proved,  and  those  presumptions  are 
either  weaker  or  stronger  according  as  the  party  has,  or  is  reasona- 
bly to  be  supposed  to  have  it  in  his  power  to  produce  other  evidence 
to  rebut  or  to  weaken  them,  in  case  the  fact  so  presumed  be  not  true, 
and  according  as  he  does  or  does  not  produce  such  contrary  evidence." 

*  4  B.  and  Aid.  121. 


CIRCUMSTANTIAL   EVIDENCE. 

Mr.  Justice  Bayley  said,  "  No  one  can  doubt  that  presumptions  may- 
be made  in  criminal  as  well  as  in  civil  cases.  It  is  constantly  the 
practice  to  act  upon  them,  and  I  apprehend  that  more  than 
one-half  *of  the  persons  convicted  of  crimes,  are  convicted  [  *160  ] 
on  presumptive  evidence.  If  a  theft  has  been  com- 
mitted, and  shortly  afterwards  the  property  is  found  in  the  posses- 
sion of  a  person  who  can  give  no  account  of  it,  it  is  presumed  that 
he  is  the  thief,  and  so  ia  other  criminal  cases ;  but  the  question  al- 
ways is,  whether  there  are  sufficient  premises  to  warrant  the  conclu- 
sion." Lord  Chief  Justice  Abbott  said,  "  A  fact  must  not  be  infer- 
red without  premises  which  will  warrant  the  inference  ;  but  if  no  fact 
could  be  thus  ascertained  by  inference  in  a  court  of  law,  very  few 
oflfences  would  be  brought  to  punishment.  In  a  great  proportion  of 
trials,  as  they  occur  in  practice,  no  direct  proof  that  the  party  ac- 
cused actually  committed  the  crime,  is  or  can  be  given ;  the  man 
who  is  charged  with  theft,  is  rarely  seen  to  break  the  house  or  take 
the  goods  ;  and  in  cases  of  murder,  it  rarely  happens  that  the  eye  of 
any  witness  sees  the  fatal  blow  struck,  or  the  poisonous  ingredient 
poured  into  the  cup."  The  law  on  this  point  was  also  very  emphat- 
ically declared  by  Mr.  Baron  Parke  in  Tawell's  case.  His  Lord- 
ship said,  "  The  jury  had  been  properly  told  by  the  counsel  for  the 
prosecution,  that  circumstantial  evidence  is  the  only  evidence  which 
can  in  cases  of  this  kind  lead  to  discovery.  There  is  no  way  of  in- 
vestigating them  except  by  the  use  of  circumstantial  evidence ;  but 
Providence  has  so  ordered  the  affairs  of  men  that  it  most  frequently 
happens  that  great  crimes  committed  in  secret  leave  behind  them 
some  traces,  or  are  accompanied  by  some  circumstances  which  lead 
to  the  discovery  and  punishment  of  the  offender  ;*  therefore  the  law 
has  wisely  provided  that  you  need  not  have,  in  cases  of 
this  kind,  direct  proof,  *that  is,  the  proof  of  eye-wit-  [  *161  ] 
nesses,  who  see  the  fact  and  can  depose  to  it  upon  their 
oaths.  It  is  impossible,  however,  not  to  say  that  is  the  best  proof, 
if  that  proof  is  offered  to  you  upon  the  testimony  of  men  whose  ve- 
racity you  have  no  reason  to  doubt ;  but  on  the  other  hand  it  is 
equally  true  with  regard  to  circumstantial  evidence,  that  the  circum- 
stances may  often  be  so  clearly  proved,  so  closely  connected  with  it, 

*  "  Ces  circonstances  sout  autant  de  t^moins  muets,  que  la  Providence  semble  avoir 
plac(fs  autour  du  crime,  pour  fair  jaillir  la  lami^re  de  I'ombre  dans  laquelle  I'argent 
s'est  efforce  d*  ensevelir  le  fait  principal ;  elles  sont  comme  un  fanal  qui  ^ciaire  I'es- 
prit  du  jnge, et  ledirige  vers  des  traces  certains, qu'il  suffit  de  suirre  pour  atteindre  k 
la  verity." — Mittermaier,  ut  supra,  ch.  53. 

18 


122  PROOF   OF  THE   CORPUS   DELICTI   BY 

or  leading  to  one  result  in  conclusion,  that  the  mind  may  be  as  "well 
convinced  as  if  it  were  proved  by  eye-'witnesses.  This  being  a  case 
of  circumstantial  evidence,  I  advise  you,"  said  the  learned  judge, 
"  as  I  invariably  advise  juries,  to  act  upon  a  rule,  that  you  are  first 
to  consider  what  facts  are  clearly,  distinctly,  indisputably  proved  to 
your  satisfaction  ;  and  you  are  to  consider  v?hether  those  facts  are 
consistent  with  any  other  rational  supposition  than  that  the  prisoner 
is  guilty  of  that  offence.  If  you  think  that  the  facts  in  this  case  are 
all  consistent  with  the  supposition  that  the  prisoner  is  guilty,  and 
can  offer  no  resistence  to  that,  except  the  character  the  prisoner  has 
borne,  and  except  the  supposition  that  no  man  would  be  guilty  of  so 
atrocious  a  crime  as  that  laid  to  the  charge  of  the  prisoner,  that 
cannot  much  influence  your  minds  ;  for  we  all  know  that  crimes  are 
committed,  and  therefore  the  existence  of  the  crime  is  no  inconsis- 
tency with  the  other  circumstances,  if  those  circumstances  lead  to 
that  result.  The  point  for  you  to  consider  is,  whether  attending  to 
the  evidence,  you  can  reconcile  the  circumstances  adduced  in 
the  evidence  with  any  other  supposition  than  that  he  has  been  guilty 
of  the  offence  ?  If  you  cannot,  it  is  your  bounden  duty  to  find  him 
guilty ;  if  you  can,  then  you  will  give  him  the  benefit  of  such  a  sup- 
position. All  that  can  be  required  is, — not  absolute,  positive  proof 
— but  such  proof  as  convinces  you  that  the  crime  has  been  made 
out*." 


[  *162  ]  *SECTION3. 

APPLICATION   OF  THE   DOCTRINE   TO   CASES   OP  HOMICIDE. 

The  same  general  principles  of  evidence  prevail,  with  respect  to 
the  proof  of  crimes  of  every  description,  and  of  every  element  of 
the  corpus  delicti ;  and  they  are  so  important  in  reference  to  circum- 
stantial evidence,  that  it  will  be  expedient  to  illustrate  their  applica- 
tion at  some  length  ;  and  for  the  sake  of  brevity  and  simplicity,  the 
exemplifications  will  be  borrowed  from  cases  of  homicide,  which  are 
commonly  those  of  the  greatest  difficulty  and  interest. 

1.)  The  discovery  of  the  body  necessarily  affords  the  best  evi- 
dence of  the  fact  of  death,  and  of  the  identity  of  the  individual,  and 
most  frequently  also  of  the  cause  of  death. f  A  conviction  for  mur- 
der is  therefore  never  allowed  to  take  place,  unless  the  body  has 

*  Reg  V.  Tawell,  ut  supra.  +  Mittcrmaier,  ut  supra,  ch.  24, 


CIRCUMSTANTIAL   EVIDENCE.  123 

been  found,  or  there  is  equivalent  proof  of  death  by  circumstantial 
evidence  leading  directly  to  that  result,*  and  many  cases  have 
shown  the  danger  of  a  contrary  practice.  Three  persons  •were  exe- 
cuted in  the  year  1660,  for  the  murder  of  a  person  who  had  sud- 
denly disappeared,  but  about  two  years  after  re-appeared.  The  de- 
ceased had  been  out  to  collect  his  mistress's  rents,  and  had  been  rob- 
bed by  highwaymen,  who  put  him  on  board  a  ship  which  was  cap- 
tured by  Turkish  pirates,  by  whom  he  was  sold  into  slavery! .  Sir 
Matthew  Hale  mentions  a  case  where  A.  was  long  missing,  and  upon 
strong  presumptions  B.  was  supposed  to  have  murdered  him,  and  to 
have  consumed  the  body  to  ashes  in  an  oven,  whereupon  B.  was  in- 
dicted of  murder,  and  convicted,  and  executed  ;  and  within  one  year 
afterwards  A.  returned,  having  been  sent  beyond  sea  by  B.  against 
his  will ;  "  and  so,"  that  learned  writer  adds,  "  though  B. 
justly  deserved  death,  yet  *he  was  really  not  guilty  of  [  *162  ] 
that  offence  for  which  he  suffered. $"  Sir  Edward  Coke 
also  gives  the  case  of  a  man  who  was  executed  for  the  murder  of  his 
niece,  who  was  afterwards  found  to  be  living,  of  which  the  particu 
lars  have  been  given  in  a  former  part  of  this  Essay. §  Sir  Matthew 
Hale,  on  account  of  these  cases,  says,  "  I  will  never  convict  any 
person  of  murder  or  manslaughter  unless  the  fact  was  proved  to  be 
done,  or  at  least  the  body  found. (|"  The  judicial  history  of  all  na- 
tions, in  all  times,  abounds  with  similar  warnings  and  exemplifications 
of  the  danger  of  neglecting  these  salutary  cautions.^ 

But,  nevertheless,  to  require  the  discovery  of  the  body  in  all  cases 
would  be  unreasonable  and  lead  to  absurdity  and  injustice,  and  is  in- 
deed frequently  rendered  impossible  by  the  act  of  the  offender  him- 
self. The  fact  of  death  may  therefore  be  inferred  from  such  strong 
and  unequivocal  circumstances  of  presumption  as  render  it  morally 
certain,  and  leave  no  ground  for  reasonable  doubt ;  as  where  on  the 
trial  of  a  mariner  for  the  murder  of  his  captain  at  sea,  a  witness 
stated  that  the  prisoner  had  proposed  to  kill  him,  and  that  being 
alarmed  in  the  night  by  a  violent  noise,  he  went  upon  deck  and  saw 
the  prisoner  throw  the  captain  overboard,  and  that  he  was  not  seen 
or  heard  of  afterwards,  and  that  near  the  place  on  the  deck  where 

*  Per  Mr.  Baron  Parke,  in  Reg  v.  Tawell,  ut  supra. 
t  Rex  V.  Perrys,  14  St.  Tr.  1312. 
t  2  Hale's  P.  C.  c.  39. 

§  See  ante,  p.  82  ;  and  for  other  cases  of  the  same  kind,  see  Green's  case,  14  St. 
Tr.  1311 ;  and  Mile's  case,  Theory  of  Prcs,  Proof,  App.  case  5. 
II  P.  C.  oh.  40. 
V  See  the  case  of  the  two  Boorns,  1  Greenleaf 'a  L.  of  Ev.  §  214,  and  ante,  p.  63. 


124  PROOF   OF   THE   CORPUS   DELICTI   BY 

the  captain  was,  a  billet  of  wood  was  found,  and  that  the  deck  and 
part  of  the  prisoner's  dress  were  stained  with  blood.  It  was  urged 
that,  as  there  were  many  vessels  near  the  place  where  the  transac- 
tion was  alleged  to  have  occurred,  the  probability  was 
[  *164  ]  that  the  party  had  been  taken  up  by  some  of  them  *and 
was  then  alive  ;  but  the  Court,  though  it  admitted  the 
general  rule  of  law,  left  it  to  the  jury  to  say  upon  the  evidence, 
whether  the  deceased  was  not  killed  before  the  body  was  cast  into 
the  sea,  and  the  jury  being  of  that  opinion,  the  prisoner  was  con- 
victed and  executed.* 

2.)  It  is  another  necessary  step  in  the  establishment  of  the  corpus 
delicti  in  cases  of  homicide,  that  the  body,  when  discovered,  be  satis- 
factorily identified.  Mr.  Justice  Park  stopped  the  trial  of  a  woman 
charged  with  the  murder  of  her  illegitimate  child,  because  the  sup- 
posed body  was  nothing  but  a  mass  of  corruption,  so  that  there  were 
no  lineaments  of  the  human  face,  and  it  was  impossible  even  to  dis- 
tinguish its  sex.f  On  the  trial  of  a  girl  for  the  murder  of  her  child, 
it  appeared  that  she  was  proceeding  from  Bristol  to  Llandago,  and 
was  seen  near  Tintern  at  six  o'clock  in  the  evening,  with  the  child 
in  her  arms,  and  that  she  arrived  at  Llandago  between  eight  and 
nine  without  it,  and  that  the  body  of  a  child  was  afterwards  found 
in  the  river  Wye  near  Tintern,  but  which  appeared  from  circum- 
stances not  to  be  the  prisoner's  child  ;  Lord  Abinger  held  that  the 
prisoner  could  not  be  called  upon  to  account  for  her  child,  or  to  say 
where  it  was,  unless  there  was  evidence  to  show  that  her  child  was 
actually  dead  ;  the  jury  were  not  sitting,  he  said,  to  inquire  what 
the  prisoner  had  done  with  her  child,  which  might  be  then  alive  and 
well.  I 

But,  nevertheless,  it  is  not  necessary  that  the  remains  should  be 
identified  by  direct  and  positive  evidence  ;  where  that  is  impracti- 
cable, and  especially  if  it  has  been  rendered  so  by  the  act  of  the 
party  accused,  it  is  sufficient  if  the  identity  be  established  by  cir- 
cumstantial evidence  which  leaves  no  reasonable  doubt  of 
[  *165  ]  the  fact.  A  man  was  tried  for  the  murder  of  a  creditor 
who  had  called  to  obtain  payment  of  a  debt,  and  whose 
body  he  had  cut  into  pieces  and  attempted  to  dispose  of  by  burning ; 
the  effluvium  and  other  circumstances  alarmed  the  neighbours.     A 

*  Rex  V.  Hindmarsh,  2  Leach's  C.  C.  571. 

"t  See  Mr.  Justice  Park's  charge  to  the  grand  jury  in  Hex  v.  Thurtell,  Hertford 
winter  assizes,  1824  ;  Reg.  v.  Edge,  ante^  p.  148. 
X  Reg.  V.  Hopkins,  8  C.  and  P.  691. 


CIRCUMSTANTIAL   EVIDENCE.  125 

portion  of  the  body  remained  unconsumed,  sufl&cient  to  prove  that  it 
was  that  of  a  male  adult ;  and  various  articles  which  had  belonged 
to  the  deceased  were  found  on  the  person  of  the  prisoner,  who  was 
apprehended  putting  oflf  from  the  Black  Rock  at  Liverpool,  after 
having  ineffectually  endeavoured  to  elude  justice  by  drowning  him- 
self. The  prisoner  was  convicted  and  executed.*  The  remains  of 
a  man  which  had  lain  undiscovered  upwards  of  twenty-three  years, 
were  identified  by  his  surviving  widow  from  peculiarities  in  the  teeth 
and  skull,  and  from  a  carpenter's  rule  found  with  them.f  Identifi- 
cation has  been  facilitated  by  the  preservation  of  the  head  and  other 
parts  in  spirits ;  J  by  the  anti-putrescent  action  of  the  very  substan- 
ces used  to  destroy  life  ;§  by  the  similarity  of  the  undigested  re- 
mains of  food  found  in  the  stomach,  with  the  food  which  it  has  been 
known  that  the  party  has  eaten  :||  by  the  correspondence  of  frag- 
ments of  garments  found  with  the  remains  and  belonging  to  the  de- 
ceased,^— and  by  many  other  mechanical  coincidences. 

The  following  is  a  most  satisfactory  case  of  the  identification  of 
human  remains,  by  a  curious  train  of  circumstantial  evidence. 

A  coachman  in  a  gentleman's  service  at  Putney,  was 
tried  at  the  Central  Criminal  Court,  May  1842,  for  *the     [  *166  ] 
murder  of  a  young  woman  who  passed  as  bis  wife,  and 
who,  together  with  a  boy  of  seven  or  eight  years  of  age,  who  called 
her  mother,  lived  for  several  years  in  lodgings  in  London  for  which 
the  prisoner  paid,  she  maintaining  herself  by  washing.     On  Wed- 
nesday evening  the  6th  of  April,  a  poUceman  went  to  his  master's 
premises  to  apprehend  the  prisoner  on  a  charge  of  stealing  some 
articles   of  wearing   apparel.     While   the  oflScer   was   engaged   in 
searching  the  stable,  he  observed  the  prisoner  go  to  one  of  the  stalls 
and  remove  some  hay  ;  and  upon  the  officer  proceeding  to  examine 
the  spot,  the  prisoner  rushed  out  of  the  stable  and  locked  the  door. 
On  continuing  the  search,  the  policeman  found  the  trunk  of  a  full- 
grown  middle  aged  female,  from  which  the  head  and  part  of  the 
neck  had  been  cut  off  by  a  clean  cut ;  the  arms  had  been  taken  ofl" 
at  the  shoulder,  and  the  legs  and  thighs  at  the  great  trochanter  ;    the 
flesh  had  been  cut  and  the  bones  had  been  chopped,  and  there  was  a 

*  Rex.  V.  Cook,  Leicester  Summer  Assizes,  1834. 

t  Rex  V.  Clewes,  Worcester  Spring  Assizes,  1830,  coram  Mr.  Justice  Littledale. 

t  Rex  V.  Hayes  and  others,  3  Par. and  F.  73. 

§  Rex  V.  Burdock,  post. 

II  Rex  V.  McDougal,  Burnett's  C.  L,  of  Scotl.  ut  supra,  p.  540. 

IT  Rex  V.  Macowan,  ib.  p.  540. 


126  PROOF   OF   THE   CORPUS    DELICT[    BY 

longitudinal  cut  extending  from  the  sternum  to  the  pubes,  and  the 
intestines  had  been  extracted.  The  blood-vessels  were  perfectly 
empty,  and  from  the  medical  evidence  it  was  probable  that  the  per 
son  had  been  dead  four  or  five  days,  and  that  the  mutilation  had 
taken  place  after  death.  In  a  stove  in  the  harness  room,  a  consider- 
able quantity  of  fuel  was  ready  prepared  for  lighting  a  fire,  and  in 
the  ashes  of  the  grate  were  found  the  remains  of  a  skull,  and  other 
human  bones  which  had  been  exposed  to  considerable  heat.  In  the 
same  room  was  found  an  axe  with  marks  of  blood  upon  the  handle 
and  edges  ;  and  in  a  drawer  a  knife  much  stained  with  blood.  There 
were  also  found  several  portions  of  female  garments  stained  with  blood  '- 
and  a  guard  with  some  keys  thereon,  all  of  which  were  identified  as 
having  belonged  to  the  deceased.  The  deceased  had  never  slept  out 
of  her  lodgings  until  Easter  Sunday,  the  3rd  of  April.  Some  time  pre- 
viously the  prisoner  had  represented  to  her  landlady  that  she 
[  *167  ]  was  *about  to  take  a  place  in  the  country,  and  on  the  last- 
named  day  she  made  arrangements  for  the  boy's  sleeping 
at  a  neighbour's  house  for  the  night,  stating  that  she  should  return 
on  the  following  morning.  The  unfortunate  woman  left  her  lodg- 
ings on  the  Sunday  morning  and  never  returned.  She  was  met 
near  Hammersmith  by  the  prisoner,  and  in  the  afternoon  they  called 
together  at  several  houses  in  the  vicinity  ;  and  in  the  evening  they 
were  seen  together  near  the  premises  of  the  prisoner's  master,  and 
subsequently  near  the  stable.  On  Monday  the  prisoner  went  to  the 
deceased's  lodgings  and  took  away  the  boy,  and  in  the  course  of  the 
day  pawned  some  articles  of  wearing  apparel  belonging  to  the  de- 
ceased, representing  that  she  was  gone  into  service.  On  Tuesday, 
the  6th,  much  smoke  and  a  strong  smell  were  observed  to  proceed 
from  the  chimney  of  the  harness-room.  On  the  morning  of  Wed- 
nesday, the  6th,  the  prisoner  went  out  with  a  puny  chaise,  and  took 
with  him  several  of  the  garments  ^yhich  had  been  worn  by  the  de- 
ceased on  the  day  on  which  she  left  her  lodgings,  which  he  gave  to 
a  woman  towards  whom  he  had  indulged  an  attachment,  and  who 
had  occasionally  slept  with  him  in  the  harness-room.  To  this  woman 
the  prisoner  represented  that  his  wife  had  been  dead  five  years,  and 
several  weeks  before  the  murder  had  promised  to  give  her  some 
things  which  had  belonged  to  her.  On  the  evening  of  the  same  day 
(the  6th),  after  having  locked  the  policeman  in  the  stable,  the  pris- 
oner went  to  the  deceased's  lodgings,  which  he  left  again  at  half-past 
five  on  the  following  morning,  the  7th,  taking  several  things  with 
him,  which  he  left  at  a  public  house  in  the  Strand,  where  he  passed 


CIRCUMSTANTIAL   EVIDENCE.  127 

by  an  assumed  name.  On  the  same  day  the  prisoner  and  his  para- 
mour went  together  to  the  same  pubUc-house,  and  he  was  heard  to 
tell  her  in  very  coarse  terms  that  the  deceased  would  never  trouble 
her  any  more.  The  prisoner  afterwards  wandered  about 
under  various  disguises,  and  was  *finally  apprehended  [  *168  ] 
working  as  a  labourer  on  the  railway  near  Tunbridge. 
It  was  impossible  under  these  circumstances  to  doubt  the  identity  of 
the  mutilated  remains,  thus  strangely  discovered,  and  in  a  place  un- 
der the  prisoner's  sole  control,  within  three  days  after  the  deceased 
had  been  seen  alive  in  his  company,  and  who  when  she  left  her  lodg- 
ings had  worn  the  very  garments  which  so  shortly  afterwards  he 
gave  to  his  paramour. 

3.)  In  the  proof  of  criminal  homicide  the  true  cause  of  death 
must  be  clearly  established  ;  and  tbe  possibility  of  reasonably  ac- 
counting for  the  event  by  self-inflicted  violence,  accident  or  natural 
cause,  be  excluded  ;  and  only  when  it  has  been  irrefragably  proved 
that  no  other  hypothesis  will  explain  all  the  conditions  of  the  case, 
and  account  for  all  the  facts,  can  it  be  safely  and  justly  concluded, 
that  it  has  been  caused  by  intentional  injury.  But  in  accordance 
with  the  principles  which  govern  the  proof  of  every  other  element 
of  the  corpus  delicti,  it  is  not  necessary  that  the  cause  of  death 
should  be  verified  by  direct  and  positive  evidence  ;  it  is  sufficient  if 
it  be  proved  by  circumstantial  evidence,  which  produces  a  moral 
conviction  in  the  minds  of  the  jury,  equivalent  to  that  which  is  the 
result  of  positive  and  direct  evidence*. 

Suicide  and  accident  are  sometimes  artfully  suggested  and  plausi- 
bly urged,  as  the  causes  of  death,  where  the  allegation  cannot  re- 
ceive direct  contradiction ;  and  where  the  truth  can  be  ascertained 
only  by  a  comparison  of  all  the  attendant  circumstances  ;  some  of 
which,  if  the  defence  be  false,  are  commonly  found  to  be  irreconcile- 
able  with  the  cause  alleged.  In  such  cases,  the  discrimination 
of  the  true  cause  of  death  occasionally  involves  the  profoundest 
considerations  of  medical  and  chemical  sciencef .  Cases 
of  this  *nature  demand  the  exercise  of  the  utmost  delibe-  [  *169  ] 
ration  and  care  ;  but  they  properly  fall  within  the  sphere 
of  general  jurisprudence,  to  which  scientific  testimony,  like  every 
other  kind  of  evidence,  is  only  subsidiary.  The  following  cases  sup- 
ply interesting   illustrations  of  the  way  in  which  such   defences  are 

*  See  the  language  of  Lord  Meadowbank  in  Reg.  v.  Humphreys,  Swinton's  Rep. 
315. 

t  See  Reg.  v.  Tawell,  pott. 


128  PEOOF  OP  THE  CORPUS  DELICTI  BY 

frequently  repelled,  and  shown  to  be  utterly  incompatible  with  the 
attendant  circumstances. 

A  man  was  tried  at  Bury  St.  Edmund's  summer  assizes,  1828, 
for  the  murder  of  a  young  woman,  who  had  borne  a  child  to  him, 
and  was  taken  by  him  from  her  father's  house  under  the  pretence  of 
conveying  her  to  Ipswich  to  be  married.  The  prisoner  having  rep- 
resented that  the  parish  officers  meant  to  apprehend  the  deceased, 
she  left  her  house  on  the  18th  of  May  in  disguise,  a  bag  containing 
her  own  clothes  having  been  taken  by  the  prisoner  to  a  bam  belong- 
ing to  his  mother,  where  it  was  agreed  that  she  should  change  her 
dress.  The  deceased  was  never  heard  of  afterwards ;  and  the  vari- 
ous and  contradictory  accounts  given  of  her  by  the  prisoner  having 
excited  suspicions,  which  were  confirmed  by  other  circumstances,  it 
was  ultimately  determined  to  search  the  barn  ;  where,  on  the  19th 
of  April,  a  distance  of  nearly  twelve  months,  the  body  of  a  female 
was  found,  which  was  clearly  identified  as  that  of  the  deceased.  A 
handkerchief  was  drawn  tight  round  the  neck,  and  a  wound  from  a 
pistol-ball  was  traced  through  the  left  ckeek,  passing  out  at  the  right 
orbit ;  and  three  other  wounds  were  found,  all  of  which  had  been 
made  by  a  sharp  instrument,  and  one  of  which  had  entered  the  heart. 
The  prisoner,  who  in  the  interval  had  removed  from  the  neighbour- 
hood, upon  his  apprehension  denied  all  knowledge  of  the  deceased  ; 
but  in  his  defence  he  admitted  the  identity  of  the  remains,  and  alle- 
ged that  an  altercation  took  place  between  them  at  the  barn,  in  con- 
sequence of  which,  and  of  the  violence  of  temper  exhibited  by  the 
deceased,  he  expreased  his  determination  not  to  marry 
[  *1T0»]  her,  *and  left  the  barn  ;  but  that  immediately  afterwards 
be  heard  the  report  of  a  pistol,  and  going  back  found  the 
deceased  on  the  ground  apparently  dead  ;  and  that,  alarmed  by  the 
situation  in  which  he  found  himself,  he  formed  the  determination  of 
burying  the  corpse  and  accounting  for  her  absence  as  well  as  he 
could.  But  the  variety  of  the  means  and  instruments  employed  to 
produce  death,  some  of  them  unusual  with  females,  in  connection 
with  the  contradictory  statements  made  by  the  prisoner  to  account 
for  the  absence  of  the  deceased,  entirely  discredited  the  account  set 
up  by  him.  He  afterwards  made  a  full  confession,  and  was  executed 
pursuant  to  his  sentence*. 

At  Durham  autumn  assizes,  1824,  a  surgeon  was  tried  for  attempt- 
ing to  poison  his  wife.      It  was  proved  that  pills  containing  corrosive 

*  Rex  V.  Corder. 


CIRCUMSTANTIAL   EVIDENCE.  129 

sublimate,  and  compounded  bj  the  prisoner,  were  given  by  him  to 
her  instead  of  pills  of  calomel  and  opium,  which  had  been  ordered 
by  her  physician  ;  but  he  alleged  that,  being  intoxicated,  he  had  mis- 
taken for  the  shop-bottle  containing  opium  the  corrosive  sublimate 
bottle,  which  stood  next  it.  This  was  an  improbable  error,  the  opi- 
um being  in  powder  and  the  sublimate  in  crystals.  The  physician 
afterwards  sent  the  prisoner  to  the  shop  to  prepare  a  laudanum 
draught,  with  water  for  the  menstruum ;  and  on  his  return  with  it, 
observing  it  to  be  muddy,  he  was  led  to  taste  it  before  he  adminis- 
tered it ;  and  finding  it  had  the  taste  of  corrosive  sublimate,  he  pre" 
served  it,  analysed  it,  and  discovered  that  it  did  contain  that  poison. 
The  prisoner  stated  that  he  had  again  committed  a  mistaiie,  and  in- 
stead of  water  had  accidentally  used  for  the  menstruum  a  corrosive 
sublimate  injection,  which  he  had  previously  prepared  for  another 
patient ;  but  this  was  proved  to  have  been  impossible,  since  the  in- 
jection contained  only  five  grains  to  the  ounce,  while  the 
^draught,  which  did  not  exceed  one  ounce,  contained  [  *171  ] 
fourteen  grains*. 

James  Greenacre  was  tried  before  the  Central  Criminal  Court,  on 
the  10th  of  April  1837,  for  the  murder  of  a  woman  whom  he  was 
about  to  marry,  and  who  in  the  prospect  of  that  event  had  converted 
nearly  all  her  goods  into  money.  On  the  morning  of  the  24th  of 
December  the  deceased  left  her  home,  stating  to  a  neighbour  that 
she  was  going  to  the  house  of  her  intended  husband  at  Camberwell, 
but  should  return  in  the  evening.  On  the  28th  of  December  the 
trunk  of  a  female  was  found  in  the  Edgeware  Road  ;  on  the  6th  of 
January  a  female  head  was  found  in  the  Regent's  Canal,  and  on  the 
2d  of  February  the  legs  of  a  female  were  found  in  an  ossier-bed  at 
Camberwell ;  these  several  parts  were  clearly  ascertained  to  be  parts 
of  the  same  body,  and  were  identified  as  the  remains  of  the  deceased. 
Upon  his  apprehension  the  prisoner  at  first  denied  all  knowledge  of 
the  deceased  ;  but  he  subsequently  admitted  that  on  the  evening  of 
the  day  on  which  she  left  her  home  she  came  to  his  house,  and  he  al- 
leged that  they  had  an  altercation  in  consequence  of  her  duplicity  in 
the  statement  of  her  property  ;  that  during  this  conversation  the  de- 
ceased was  moving  backwards  and  forwards  in  her  chair,  which  was 
on  the  balance  ;  that  he  put  his  foot  to  the  chaii",  when  she  fell  back 
with  great  violence  against  a  block  of  wood ;  and  that  finding  life 
extinct,  he  made  up  his  mind  in  the  alarm  of  the  moment  to  conceal 

*  Rex  V.  Hodgson,  Christison  on  Poisons,  p.  S2. 

19 


130  PROOF  OF  THE  CORPUS  DELICTI  BY 

her  death,  and  get  rid  of  her  remains,  to  which  effect  he  had  divided 
and  disposed  of  them  in  the  manner  stated.  This  ingenious  fabrica- 
tion was  clearly  refuted  by  the  professional  witnesses,  who  proved 
that  a  wound  in  the  eye,  which  had  occasioned  the  escape  of  the 
humours  and  around  which  there  was  an   ecchymosis,   must  have 

been  inflicted  during  life,  and  deprived  the  deceased  of 
[  *172  ]     sense  for  a  time  ;  that  it  could  not  *have  been  occasioned 

by  a  blow  at  the  back  of  the  head ;  and  that  from  the  re- 
tracted state  of  the  muscles  of  the  neck  and  the  emptied  condition 
of  the  blood-vessels,  her  throat  must  have  been  cut  either  before  or 
immediately  after  death.* 

But  it  is  not  always  that  the  nature  of  the  injuries,  and  the  attend- 
ant circumstances,  thus  afford  the  means  of  concluding  with  moral 
certainty,  that  the  allegations  of  suicide  or  accident  are  false,  and 
death  has  not  been  occasioned  in  one  or  other  of  those  ways.  In 
such  cases,  scientific  evidence,  when  uncorroborated  by  conclusive 
moral  circumstances,  must  be  received  with  much  circumspection  and 
reserve  ;  and  justice  no  less  than  prudence  requires  that  where  the 
guilt  of  the  accused  is  not  conclusively  made  out,  however  suspicious 
his  conduct  may  have  been,  he  shall  be  acquitted.  The  following 
cases  exemplify  the  distinction. 

A  young  man  was  tried  for  the  murder  of  his  brother.  The  de- 
ceased lived  with  his  father  and  overlooked  his  farm.  The  prisoner, 
who  was  on  ill  terms  with  the  deceased,  and  lived  about  twenty  miles 
from  his  father's  house,  went  to  visit  his  father,  and  on  the  day  after 
his  arrival  the  deceased  was  found  dead  in  the  stable,  not  far  from  a 
vicious  mare,  and  her  traces  were  upon  his  arms  and  shoulders ;  two 
other  horses  were  in  the  stable,  but  they  had  their  traces  on.  Sus- 
picion fell  on  the  prisoner,  and  the  question  was,  whether  he  had 
killed  the  deceased  with  a  spade,  or  whether  he  had  been  kicked 
by  the  mare.  The  spade  was  bloody,  but  it  had  been  inadvert- 
ently used  in  cleaning  the  stable  by  a  boy ;  and  the  nature  of  the 
cause  of  death  could  only  be  determined  by  the  character  of  the 
wounds.  There  were  two  straight  incised  wounds  on  the  left  side  of 
the  head,  one  about  five,  and  the  other  about  two  inches  long,  which 

had  apparently  been  inflicted  by  an  obtuse  instrument. 
[  "ITS  ]     *0n  the  right  side  of  the  head  there  were  three  irregular 

wounds,  (two  of  them  about  four  inches  in  length,)  par- 
taking of  the  appearance  both  of  lacerated  and   incised   wounds. 

*  Sessions  Papers,  1337. 


CIRCUMSTANTIAL  EVIDENCE.  131 

There  was  also  a  wound  on  the  back  part  of  the  head,  about  two 
inches  and  a  half  long.  There  was  no  tumefaction  around  any  of 
the  wounds,  the  integuments  adhering  firmly  to  the  bone  ;  and,  ex- 
cept where  the  wounds  were  inflicted,  the  fracture  of  the  skull  was 
general  throughout  the  right  side,  and  it  extended  along  the  back  of 
the  head  toward  the  left  side,  and  a  small  part  of  the  temporary  bone 
came  away.  The  deceased  was  found  with  his  hat  on,  which  was 
bruised  but  not  cut,  and  there  were  no  wounds  on  any  other  part  of 
the  body.  Two  surgeons  expressed  a  strong  opinion  that  the  wounds 
could  not  have  been  inflicted  by  kicks  from  a  horse  ;  grounding  that 
opinion  principally  on  the  distinctness  of  the  wounds,  the  absence  of 
contusion,  the  firm  adherence  of  the  integuments,  the  straight  lateral 
direction  and  similarity  of  the  wounds  ;  whereas,  as  they  stated,  the 
deceased  would  have  fallen  from  the  first  blow  if  he  had  been  stand- 
ing, and  if  lying  down  the  wounds  would  have  been  perpendicular  ; 
and  they  moreover  expressed  a  positive  opinion  that  the  wounds 
could  not  have  been  inflicted  if  the  hat  had  been  on  the  deceased's 
head  without  cutting  the  hat,  and  that  he  could  not  have  put  on  his 
hat  after  receiving  any  of  the  wounds.  The  learned  Judge,  however, 
stated  that  he  remembered  a  trial  at  the  Old  Bailey,  where  it  had 
been  proved  that  a  cut  and  fracture  had  been  received,  without  hav- 
ing cut  the  hat ;  and  evidence  was  adduced  of  the  infliction  of  a 
similar  wound  by  a  kick  without  cutting  the  hat.  The  prisoner  was 
acquitted.* 

*A  druggist's  apprentice  was  tried  for  the  murder  of  [  *174  ] 
his  fellow  servant,  by  prussic  acid.  The  deceased  was 
pregnant  by  the  prisoner,  and  was  found  one  morning  dead  in  bed. 
A  number  of  circumstances  led  to  the  suspicion  that  the  prisoner 
had  been  instrumental  in  the  administration  of  the  poison ;  but  it  was 
proved  that  the  deceased  had  made  arrangements  for  a  miscarriage 
by  artificial  means  on  the  very  night  in  question;  and  it  was  there- 
fore urged  on  the  part  of  the  prisoner,  that  she  had  taken  the  poison 
of  her  own  aiscord.  It  appeared  that  she  had  taken  prussic  acid 
from  a  partially  emptied  phial,  which  lay  corked  and  wrapped  in  pa- 
per beside  her  bed,  where  she  was  found  lying  with  the  bed-clothes 
drawn  up  to  her  chin,  and  her  arms  folded  across  the  body.  A 
piece  of  leather  and  string,  which  appeared  to  have  been  taken  from 
a  bottle,  were  found  in  the  room.     It  was  considered  in  the  highest 

*  Warwick  Spring  Assizes,  1808,  (Rex  v.  Booth)  coram  Mr.  Baron  Wood.  It  is 
curious  that  the  prisoner  was  shortly  afterwards  executed  for  forging  Bank  of  Eng- 
land notes. 


132  PROOF  OP  THE  CORPUS  DELICTI  BY 

degree  improbable,  but  was  generally  admitted  by  the  medical  wit- 
nesses to  have  been  possible,  that  the  deceased  might  have  corked 
the  bottle  after  taking  the  dose  from  which  she  died ;  and  the  pris- 
oner, though  his  conduct  had  very  deservedly  drawn  suspicion  upon 
him,  was  therefore  acquitted.  The  fact  is  instructive  and  admoni- 
tory, and  Professor  Christison,  (in  the  later  editions  of  his  book  on 
poisons,)  with  the  candour  which  should  ever  mark  the  scientific 
mind,  acknowledges  that  the  concurrence  which  in  the  first  edition  of 
that  work  he  had  expressed  in  the  opinion  of  the  majority  of  the  wit- 
nesses, that  there  could  not  have  been  time  after  swallowing  the 
poison  for  performing  the  acts  of  volition  implied  in  the  supposition 
of  suicide  was  given  rather  too  unreservedly ;  and  he  mentions  a 
case  of  suicide,  in  which  an  apothecary's  assistant  was  found  dead 
in  bed,  with  an  empty  two-ounce  phial  on  each  side  of  the  bed  ;  the 
mattress,  which  is  used  in  Germany  instead  of  blankets,  pulled  up  as 

high  as  the  breast,  the  right  arm  extended  straight  down 
[  *175  ]     beneath  the  mattress,  and   the   left   arm  bent   *at   the 

elbow  ;*  and  other  instances  of  the  same  kind  have  since 
occurred. 

A  surgeon  was  tried  at  the  Central  Criminal  Court,  August  1814, 
before  Mr.  Baron  Gurney,  for  the  murder  of  his  wife.  They  left 
their  place  of  residence  at  North  Sunderland,  on  a  journey  of  plea- 
sure to  London  on  the  1st  of  June  (having  a  few  days  previously 
made  mutual  wills  in  each  other's  favour),  where  on  the  4th  of  that 
month  they  went  into  lodgings.  The  deceased,  who  was  advanced 
in  pregnancy,  was  slightly  indisposed  after  the  journey  ;  but  not  suf- 
ficiently so  to  prevent  her  from  going  about  with  her  husband.  On 
the  8tb,  being  the  Saturday  morning  after  their  arrival  in  town,  the 
prisoner  rang  the  bell  for  some  hot  water,  a  tumbler  and  a  spoon ; 
and  he  and  his  wife  were  heard  conversing  in  their  chamber  about 
seven  o'clock.  About  a  quarter  before  eight  the  prisoner  called  the 
landlady  up  stairs,  saying  that  his  wife  was  very  ill ;  and  she  found 
her  lying  motionless  on  the  bed,  with  her  eyes  shut  and  her  teeth 
closed,  and  foaming  at  the  mouth.  On  being  asked  if  she  was  sub- 
ject to  fits,  the  prisoner  said  she  had  had  fits  before  but  none  like 
this,  and  that  she  would  not  come  out  of  it.  On  being  pressed  to 
send  for  a  doctor,  the  prisoner  said  he  was  a  doctor  himself  and 
should  have  let  blood  before  but  that  there  was  no  pulse.     On  being 

•  Rex  V.  Freeman,  Leicester  Spring  Assizes,  1829,  coram  L.  C.  J.  Best.  Christison 
on  Poisons,  p.  705.    Beck's  Medical  Jurisp.  p.  887. 


CIRCUMSTANTIAL   EVIDENCE.  133 

further  pressed  to  send  for  a  doctor  and  his  friends  he  assented,  add- 
ing that  she  -would  not  come  to,  that  this  was  an  affection  of  the 
heart,  and  that  her  mother  died  in  the  same  ^vay  nine  months  ago. 
The  servant  was  accordingly  sent  to  fetch  two  of  the  prisoner's 
friends,  and  on  her  return  she  and  the  prisoner  put  the  patient's  feet 
and  hands  in  Avarm  water,  and  applied  a  mustard  plaster 
to  her  chest.  A  medical  man  was  sent  for,  but  *before  [  *176  ] 
his  arrival  the  patient  had  died.  There  was  a  tumbler 
close  to  the  head  of  the  bed,  about  one-third  full  of  something  clear 
but  Avhiter  than  water,  and  there  was  also  an  empty  tumbler  on  the 
other  side  of  the  table,  and  a  paper  of  Epsom  salts.  In  reply  to  a  ques- 
tion from  the  medical  man  whether  the  deceased  had  taken  any  medi- 
cine that  morning,  the  prisoner  stated  that  she  had  taken  nothing 
but  a  little  salts.  On  the  same  morning  the  prisoner  ordered  a  grave 
for  interment  on  the  following  Monday.  In  the  meantime  the  con- 
tents of  the  stomach  were  examined  and  found  to  contain  prussic 
acid  and  Epsom  salts.  It  was  deposed  that  the  symptoms  were  simi- 
lar to  those  of  death  by  prussic  acid,  but  might  be  the  result  of  any 
powerful  sedative  poison,  and  that  the  means  resorted  to  by  the  pris- 
oner were  not  likely  to  promote  recovery  ;  but  that  cold  affusion,  ar- 
tificial respiration,  and  the  application  of  brandy  or  ammonia  (which 
in  the  shape  of  smelling  salts  is  found  in  every  house),  and  other 
stimulants  were  the  appropriate  remedies,  and  might  probably  have 
been  effectual.  No  smell  of  prussic  acid  had  been  discovered  in  the 
room,  though  it  has  a  very  strong  odour,  but  the  window  was  open, 
and  it  was  stated  that  the  odour  is  soon  dissipated  by  a  current  of 
air.  The  prisoner  had  purchased  prussic  acid,  as  also  acetate  of 
morphine,  on  the  preceding  day,  from  a  vender  of  medicines  with 
whom  he  was  intimate  ;  but  he  had  been  in  the  habit  of  using  these 
poisons  under  advice  for  a  complaint  in  the  stomach.  Two  days 
after  the  fatal  event,  the  prisoner  stated  to  the  medical  man,  who 
had  been  called  in  and  who  had  assisted  in  the  examination  of  the 
body,  that  on  the  morning  in  question  he  was  about  to  take  some 
prussic  acid,  that  on  endeavouring  to  remove  the  stopner  he  had 
some  difficulty,  and  used  some  force  with  the  handle  of  a  tooth-brush, 
that  in  consequence  of  breaking  the  neck  of  the  bottle  by  the  force, 
some  of  the  acid  was  spilt ;  that  he  placed  the  remainder 
in  the  tumbler  *on  the  drawers  at  the  end  of  the  bed-room,  [  '177  ] 
that  he  went  into  the  front  room  to  fetch  a  bottle  wherein 
to  place  the  acid,  but  instead  of  so  doing  began  to  write  to  his 
friends  in  the  country,  when  in  a  few  minutes  he  heard  a  scream 


134  PROOF  OP  THE   CORPUS   DELICTI    BY 

from  his  wife's  bedroom,  calling  for  cold  water,  and  that  the  prussic 
acid  was  undoubtedly  the  cause  of  her  death.  Upon  being  asked 
what  he  had  done  with  the  bottle,  the  prisoner  said  he  had  destroyed 
it ;  and  on  being  asked  why  he  had  not  mentioned  the  circumstances 
before,  he  said  he  had  not  done  so,  because  he  was  so  distressed  and 
ashamed  at  the  consequences  of  his  negligence.  To  various  persons 
in  the  north  of  England  the  prisoner  wrote  false  and  suspicious  ac- 
counts of  his  wife's  illness.  In  one  of  them,  dated  from  the  Euston 
Hotel  on  the  6th  of  June,  he  stated  that  his  wife  was  unwell,  and 
that  two  medical  men  attended  her,  and  that  in  consequence  he 
should  give  up  an  intended  visit  to  Holland,  and  intimated  his  appre- 
hension of  a  miscarriage.  For  these  statements  there  was  no  foun- 
dation. At  that  time  moreover  he  had  removed  from  the  Euston 
Hotel  into  Lodgings,  and  on  the  same  day  he  had  made  arrange- 
ments for  leaving  his  wife  in  London,  and  proceeding  himself  on  his 
visit  to  Holland.  In  another  letter,  dated  the  8th  of  June,  and 
posted  after  his  wife's  death,  though  it  could  not  be  determined 
whether  it  was  written  before  or  after,  the  prisoner  stated  that  he 
had  had  his  wife  removed  from  the  hotel  to  private  lodgings,  where 
she  was  dangerously  ill  and  attended  by  two  medical  men,  one  of 
whom  had  Dronounced  her  heart  to  be  diseased ;  these  representa- 
tions were  equally  false.  In  another  letter,  dated  the  9th  of  June, 
but  not  posted  until  the  10th,  he  stated  the  fact  of  his  wife's  death, 
but  without  any  allusion  to  the  cause  ;  and  in  a  subsequent  letter 
he  stated  the  reason  for  the  suppression  to  be  to  conceal  the  shame 
and  reproach  of  his  negligence.  The  prisoner's  statement 
[  *1T8  ]  to  his  landlady  that  his  wife's  mother  had  died  *from  dis- 
ease of  the  heart  was  also  a  falsehood  ;  the  prisoner  hav- 
ing himself  stated  in  writing  to  the  registrar  of  burials  that  brain 
fever  was  the  cause  of  death.  It  was  however  proved  that  the  pris- 
oner was  of  a  kind  disposition,  that  he  and  his  wife  had  Uved  upon 
affectionate  terms,  and  that  he  was  extremely  careless  in  his  habits ; 
and  no  motive  for  so  horrible  a  deed  was  clearly  made  out,  though  it 
was  urged  that  it  was  the  desire  of  obtaining  her  property  by  means 
of  her  testamentary  disposition.  Upon  the  whole,  though  the  case 
was  to  the  last  degree  suspicious,  it  was  certainly  possible  that  an 
accident  might  have  taken  place  in  the  way  suggested  ;  and  the  jury 
brought  in  a  verdict  of  acquittal. 


CIRCUMSTANTIAL   EVIDENCE.  135 


SECTION    4. 

APPLICATION  OF  THE  GENERAL  PRINCIPLE  TO  PROOF  OF  THE  CORPUS 
DELICTI  IN  CASES  OF  POISONING. 

There  are  t^yo  classes  of  cases  of  homicide  in  -which  the  proof  of 
the  caust  of  death  presents  peculiar  difficulties ;  those  namely,  of 
poisoning  and  infanticide.  An  examination  of  the  principles  on 
which  courts  of  law  proceed  in  the  investigation  of  cases  of 
these  descriptions  •will  form  an  instructive  commentary  upon  the 
rules  of  evidence  and  procedure,  which  have  formed  the  subject  of 
this  and  the  preceding  chapters. 

The  chief  grounds  upon  which  the  proof  of  criminal  poisoning 
generally  rests,  are  the  symptoms  during  life,  post  mortem  appear- 
ances, chemical  tests,  and  moral  conduct. 

1,  2.)  The  first  and  second  of  these  heads  of  evidence  belong 
more  appropriately  to  medical  jurisprudence  ;  but  the  diversity  of 
opinion  which  prevails  respecting  the  sufficiency  of  such  evidence 
alone,  and  the  consideration  that  the  facts  must  be  sub- 
mitted to  a  popular  tribunal,  acting  *upon  the  principles  [  '179  ] 
of  common  observation  and  experience,  render  it  expedient 
briefly  to  notice  the  general  result  of  those  opinions. 

Writers  on  this  department  of  jurisprudence  appear  to  be  agreed, 
that  the  symptoms  and  j90S^  mortem  appearances,  which  are  common- 
ly incidental  to  cases  of  poisoning,  are  such  as  may  in  general  be 
produced  by  other  causes ;  and  that  consequently  they  can  never  be 
considereil  as  affording  unequivocal  evidence  of  death  from  poison- 
ing* ;  while  some  authors  maintain  that  the  doctrine  applies  only  to 
the  general  characteristics  of  the  symptoms,  and  that  in  some  cases 
of  'particular  poisons,  as  for  instance  sulphuric,  nitric  and  oxalic 
acids,  arsenic,  the  compounds  of  mercuryf  and  some  others,  the 
symptoms  only  may  occasionally  afford  decisive  evidence  of  poison- 
ing ;  and  that  in  many  instances  both  of  acute  and  chronic  poison- 
ing with  strong  acids,  distinct  evidence  may  be  procured  from  the 
morbid  appearances  onlyj.  But  it  never  occurs  in  practice,  that 
charges  of  this  nature  depend  upon  these  elements  of  proof  alone ; 
they  are  invariably  blended  with  other  and  more  conclusive  heads  of 
evidence,  so  that  these  points  may  be  considered  as  in  some  degree 

*  ChristisoQ  on  Poisons,  p.  27.  t  Ibid.  pp.  165,  207,  308,  402. 

t  Ibid.  p.  163. 


136  PROOF   OP  THE   CORPUS  DELICTI  BY 

rather  of  an  abstract  and  theoretical  than  of  a  practical  character ; 
and  this  general  mention  of  them  is  therefore  all  that  is  requisite  for 
the  purposes  of  this  Essay. 

3.)  Some  foreign  writers  on  medical  jurisprudence  maintain  that 
poisoning  can  never  be  satisfactorily  substantiated  \mless  the  particu- 
lar poison  be  made  out*  ;  but  that  is  a  point  which  it  does  not  fall 
within  the  province  of  medical  jurisprudence  to  determine  :  it  is  a 
mixed  question  of  fact  and  law,  to  be  settled  by  the  tribunals. 
Such  a  doctrine  has  never  been  admitted  in  English  jurisprudence, 

and  its  recognition  would  be  fraught  with  danger.  Some 
[  *180  ]     *of  the  vegetable  poisons,  at  least  in  the  present  state  of 

chemical  science,  scarcely  admit  of  that  kind  of  prooff  ; 
and  to  require  it  would  be  to  proclaim  impunity  to  offenders  skilled 
in  chemistry.  A  conviction  took  place  in  Scotland,  where  a  servant- 
girl  had  mixed  some  poisonous  matter  with  gravy ;  but  the  scientific 
witnesses  were  unable  to  discover  any  poisonous  substance,  and  one 
of  them  stated  that  he  was  Jed  to  suppose  that  poison  had  been 
swallowed,  merely  from  the  circumstance  of  two  persons  being  taken 
ill  nearly  at  the  same  time,  after  partaking  of  the  same  food,  and 
with  symptoms  which  various  kinds  of  poison  would  produce.  In 
answer  to  a  question  from  the  court,  he  said  the  probability  was 
greatly  strengthened  by  the  fact,  that  the  violence  of  the  symptoms 
was  in  proportion  to  the  quantities  of  the  suspected  food  taken. 
The  prisoner  admitted  that  she  had  introduced  a  little  powder  in 
sport,  which  she  had  obtained  from  a  neighbouring  servant,  who  as- 
sured her  that  it  would  do  no  harm,  but  merely  sicken  the  persons 
who  might  partake  of  it:|:. 

It  was  strenuously  urged  by  the  counsel  for  the  prisoner  in  a  late 
case,  of  great  interest,  that  it  was  a  rule  of  law,  that  there  should 
be  positive  proof  of  the  mode  of  death,  and  also  that  such  a  quan- 
tity of  poison  was  found  in  the  body  of  the  deceased  as  would  neces- 
sarily occasion  death§ .  But  this  doctrine  was  peremptorily  repudi- 
ated by  Mr.  Baron  Parke,  who  told  the  jury,  that  "  if  the  evidence 
satisfied  them  that  the  death  was  occasioned  by  poison,  and  that  that 
poison  was  administered  by  the  prisoner, — if  that,"  said  his  Lord- 
ship, "  is  proved  by  circumstantial  evidence,  it  is  not  necessary  to 

*  Ibid.  Pref.  x.  and  p.  59. 

t  Proces    de    Caslaing,   Causes   Criminelles  c^l^bres  du  dix-neuvieme  si^e,  t.  8. 
p.  1. 

t  Rex  V.  Alcorn,  1  Sjme  s  Justiciary  Kep.  221. 
§  Reg.  V.  Tawell,  jtosf. 


CIRCUMSTANTIAL  EVIDENCE.  137 

give  direct  and  positive  proof  what  ia  the  quantity  which 
would  destroy  life,  nor  *is  it  necessary  to  prove  that  such  [  *181  ] 
a  quantity  was  found  in  the  body  of  the  deceased,  if  the 
other  facts  lead  you  to  the  conclusion  that  the  death  was  occasioned 
by  poison,  and  that  it  was  knowingly  administered  by  the  prisoner. 
You  must  take  this  fact,  just  the  same  as  all  the  other  parts  of  the 
case  and  see,  if  you  are  satisfied  as  reasonable  men  whether  the 
prisoner  is  guilty  or  not.  The  only  fact  which  the  law  requires  to 
be  proved  by  direct  and  positive  evidence  is  the  death  of  the  party, 
by  finding  the  body  ;  or  when  such  proof  is  absolutely  impossible, 
by  circumstantial  evidence  leading  closely  to  that  result, — as  where 
a  body  was  thrown  overboard  far  from  land, — when  it  is  quite 
enough  to  prove  that  fact  without  producing  the  body."  His  Lord- 
ship in  a  subsequent  part  of  his  charge  also  said,  "  There  is  very 
reasonable  evidence,  supposing  that  to  be  required,  which  I  tell  you 
is  not,  that  the  quantity  of  prussic  acid  in  the  stomach  amounted  to 
one  grain ;  and  although  that  is  not  necessary  to  be  proved,  the  sci- 
entific evidence  shows  that  one  grain  maybe  enough  to  destroy  life." 
In  reference  to  the  argument  urged  by  the  prisoner's  counsel,  that 
the  deceased  might  have  died  from  some  sudden  emotion,  the  learn- 
ed judge  said,  that  it  was  within  the  range  of  possibility  that  a  per- 
son might  so  die  without  leaving  any  trace  on  the  brain  ;  they  were 
to  judge  whether  they  could  attribute  death  to  that  cause,  if  they 
found  strong  evidence  of  the  presence  of  poison  ;  because  they  were 
not  to  have  recourse  to  mere  conjecture  ;  that,  where  the  result  of 
the  evidence  gave  them  the  existence  of  a  cause  to  which  death 
might  be  rationally  attributed,  they  were  not  to  suppose  it  was  to  be 
attributed  to  any  other  cause. 

Upon  general  principles,  however,  it  cannot  be  doubted  that  courts 
of  law  would  require  chemical  evidence  of  poisoning,  wherever  it 
were  attainable ;  and  in  that  case  it  would  seem  but  rea- 
sonable in  analogy  to  the  general  *rules  of  evidence,  that  [  *182  ] 
it  should  be  of  the  highest  character  which  the  nature  of 
the  case  admits  :  at  least  a  conviction  cannot  be  satisfactory  if  it  be 
grounded  upon  evidence  of  an  inferior  nature,  where  evidence  of  a 
more  satisfactory  character  is  capable  of  being  adduced.  In  a  case 
before  the  Court  of  Justiciary,  a  physician  eminently  versed  in  toxi- 
cological  science  stated  that  he  considered  the  seven  liquid  tests  for 
arsenic  which  had  been  employed  in  that  case,  and  which  had  seve- 
rally yielded  the  characteristic  appearances  of  arsenic,  to  be  suffi- 
cient  evidence  taken  together,  though  they  were  not  so  singly ;  and 

20 


138  PROOF  OF  THE  CORPUS  DELICTI  BT 

that  he  was  not  acquainted  with  any  other  substances  which  could 
give  the  same  successive  appearances  with  all  the  tests  ;  but  he  add- 
ed, that  it  would  require  a  very  wide  investigation  of  the  ^Yhole  field 
of  chemistry  to  say  that  no  other  substance  would*.  The  chance  of 
error  in  such  case  must  be  inconceivably  small,  the  sources  of  falla- 
cy connected  with  each  of  the  tests  being  different;  but  in. the  case 
in  question  metallic  arsenic  had  in  fact  been  reproduced,  so  that  the 
result  did  not  depend  upon  the  evidence  as  to  the  effect  and  suflS- 
ciency  of  the  other  tests.  The  effect  of  the  Hquid  tests  was  also 
much  relied  upon  in  the  case  of  a  young  woman  who  was  convicted, 
at  Warwick  autumn  assizes,  1831,  of  the  murder  of  her  uncle,  a 
labouring  man,  whose  savings  had  excited  the  cupidity  of  a  man  to 
whom  she  was  about  to  be  married.  The  deceased  left  his  work  in 
the  evening  in  good  health ;  but  died  in  the  night,  after  having  sup- 
ped upon  pea-soup.  The  prisoner  had  purchased  arsenic  on  the  day 
of  her  uncle's  decease,  which  she  stated  that  she  had  purchased  to 
poison  mice,  pointing  to  a  dead  one  which  however  had  not  been 
poisoned.  The  symptoms  and  post  morteon  appearances  were  such  as 
would  have  been  produced  by  an  irritant  poison.  To  the  contents  of 
the  stomach  were  applied  the  several  tests  of  the  ammo- 
[  *183  ]  niacal  *nitrate  of  silver,  the  ammoniacal  sulphate  of  cop- 
per, and  sulphuretted  ^hydrogen  gas  ;  and  crystals  of 
white  arsenic  were  obtained  by  the  reduction  test.  A  physician 
stated  that  he  had  seen  the  liquid  tests  apphed,  and  that  when  the 
result  of  them  applied  to  the  same  liquid  is  uniform,  no  chemist 
would  doubt  the  correctness  of  that  result,  and  that  he  considered 
them  to  be  conclusive ;  since,  though  the  three  tests  might  be  sepa- 
rately fallacious,  the  sources  of  fallacy  were  different.  On  cross-ex- 
amination the  witness  said  there  was  scarcely  any  test  which  had  not 
been  said  to  have  been  subsequently  proved  to  be  fallacious,  which 
however  he  doubted,  but  that  the  test  by  reduction  was  certainly  not 
fallacious.  The  prisoner  was  convicted  and  executed,  and  acknow- 
ledged her  guiltf. 

The  following  is  a  leading  and  remarkably  instructive  case  in  refer- 
ence to  the  particular  question  in  discussion. 

A  surgeon  and  apothecary  was  tried  at  Launceston  spring  assizes, 
1817,  before  Mr.  Justice  Abbott,  for  the  murder  of  Mrs.  Elizabeth 
Downing,  his  mother-in-law.  The  prisoner  and  the  deceased  were 
next-door  neighbours,  and  lived  upon  friendly  terms ;  and  there  was 

•  Rex  V.  Elder,  1  Syme's  Rep.  71.  t  Rex  v.  Higgins. 


^r     CIRCUMSTANTIAL   EVIDENCE.  139 

no  suggestion  of  malice,  nor  could  any  motive  be  assigned  which 
could  have  induced  the  prisoner  to  commit  such  an  act,  except  that 
he  was  in  somewhat  straightened  circumstances,  and  in  the  event  of 
his  mother-in-law's  death  would  t^ave  become  entitled  to  a  share  of 
her  property.  On  the  19th  of  October  the  deceased  drank  tea  at 
the  prisoner's  house,  and  returned  home  much  indisposed,  retching 
and  vomiting,  with  a  violent  cramp  in  her  legs,  from  which  she  did 
not  recover  for  several  days.  On  Sunday  the  3d  of  November,  after 
returning  from  church,  she  dined  at  home  on  boiled  rabbits  smoth- 
ered with  onions,  and,  upon  the  invitation  of  her  daughter,  drank 
tea  in  the  evening  at  the  prisoner's  house  with  a  family 
party.  The  prisoner  handed  *to  the  deceased  cocoa  and  [  •184  ] 
bread  and  butter,  proceeding  towards  her  chair  by  a  cir- 
cuitous route  ;  and  while  she  was  drinking  the  second  cup  she  com- 
plained of  sickness,  and  went  home,  where  she  was  seized  with 
retching  and  vomiting,  and  attended  with  frequent  cramps  ;  and  then 
a  violent  purging  took  place,  and  at  eight  o'clock  the  same  morning 
she  died.  To  a  physician  called  in  by  the  prisoner  two  or  three 
hours  before  her  death,  he  stated  that  she  had  an  attack  of  cholera 
morbus.  The  nervous  coat  of  the  stomach  was  found  to  be  partially 
inflamed  or  stellated  in  several  places,  and  the  villous  coat  was  soft- 
ened by  the  action  of  some  corrosive  substance  ;  the  blood-vessels  of 
the  stomach  were  turgid,  and  the  intestines,  particularly  near  the 
stomach,  inflamed.  The  contents  of  the  stomach  were  placed  in  a 
jug,  in  a  room  to  which  the  prisoner  (to  whom  at  that  time  no  sus- 
picion attached,)  had  access  ;  and  it  appeared  that  he  had  clandes- 
tinely tampered  with  those  contents,  by  throwing  them  into  another 
vessel,  containing  a  quantity  of  water.  The  prisoner  proposed  that 
the  body  should  be  interred  on  the  following  Wednesday,  assigning 
as  a  reason  for  so  early  an  interment,  that,  from  the  state  of  the 
corpse,  there  would  be  danger  in  keeping  it  longer.  This  represen- 
tation was  entirely  untrue.  He  also  evinced  much  eagerness  to  ac- 
celerate the  preparations  for  the  funeral,  urging  the  person  who  had 
the  charge  of  it,  and  the  men  who  were  employed  in  making  the 
vault,  to  unusual  exertions.  The  physician  called  in  to  the  deceased 
concluded  from  the  shortness  of  the  illness,  and  the  morbid  appear- 
ances, that  she  had  died  from  the  efiects  of  some  active  poison ;  and 
in  order  to  discover  the  particular  poison  supposed  to  have  been  used, 
he  appUed  to  the  contents  of  the  stomach  the  chemical  tests  of  the 
ammoniacal  sulphate  of  copper  or  common  blue  vitriol,  and  the  am- 
moniacal  nitrate  of  silver  or  lunar  caustic  in  solution,  which  severally 


140  PROOF  OF  THE  CORPUS  DELICTI  BY 

yielded  the  *characteristic  appearances  of  arsenic  ;   the 
[  *185  ]     ammoniacal  sulphate  of  copper  producing  a  green  precip- 
itate, ■whereas  a  blue  precipitate  is  formed  if  no  arsenic 
be  present,  and  the  ammoniacal  nitrate  of  silver  producing  a  yellow 
precipiiate,  instead  of  a  white  precipitate,  resulting  if  arsenic  be  not 
present.     He  stated  that  he  considered  these  tests  infallible,  and  that 
be  had  used  them  because  they  would  detect  a  minuter  portion  of 
arsenic  ;  on  which  account  he  considered  it  to  be  more  proper  for  the 
occasion,  as  from  the  appearance  of  the  tests  he  found  there  could 
not  be  much.     Concluding  that  bile  had  been  taken  into  the  stomach, 
be  mixed  some  bile  with  water,  and  applied  some  tests,  but  found 
no  indication  of  the  presence  of   arsenic ;  from  which  he  inferred 
that  the  presence  of  bile  would  not  alter  the  conclusion  which  he  had 
previously  drawn.     Having  been  informed  that  the  deceased  had 
eaten   onions,  he  boiled  some  in  water  ;  and  after  pouring  oflF  the 
water  in  which  they  were  boiled,  he  poured  boiling  water  over  them 
and  left  them  standing  for  some  time,  after  which  he  applied  the 
same  tests  to  the  solution  thus  procured,  and  ascertained  that  it  did 
not  produce  the  characteristic  appearances  of  arsenic.     The  witness, 
upon  his  cross-examination,  admitted  that  the  symptoms  and  appear- 
ances were  such  as  might  have  been  occasioned  by  some  other  cause 
than  poisoning  ;  that  the  reduction  test  would  have  been  infallible  ; 
and  that  it  might  have  been  adopted  in  the  first  instance,  and  might 
also  have  been  tried  upon  the  matter  which  had  been  used   for 
the  other  experiments.     Upon  his  re-examination  he  accounted  for 
bis  omission  of  the  reduction  test,  by  stating,  that  the  quantity  of 
matter  left  after  the  frequent  vomitings  and  the  other  experiments 
would  have  been  too  small,  and  that  it  would  not  have  been  so  cor- 
rect to  use  the  matter  which  had  been  subjected  to  the 
[  *186  ]     preceding  experiments,  and  that  the  tests  he  used  *would 
detect  a  more  minute  quantity  of  arsenic.     It  was  clear 
therefore  that  no  sufficient  reason  existed,  why,  if  arsenic  had  been 
contained  in  the  stomach,  it  had  not  been  reproduced  either  by  an 
original  experiment  or  by  experiments  upon  the  matter  to  which  the 
other  tests  had  been  applied,  and  that  its  dilution  had  not  rendered 
the  experiment  by  reduction  impracticable,  but  only  more  dilatory 
and  troublesome.     It   was   deposed  by  several  medical   witnesses 
called  on  the  part  of  the  prisoner,  that  the  symptoms  and  morbid  ap- 
pearances, though  they  were  such  as  might  and  did  commonly  denote 
poisoning,  did  not  exclude  the  possibility  that  death  might  have  been 
occasioned  by  cholera  morbus  or  some  other  disease  ;  that  the  tests 


CIRCUMSTANTIAL   EVIDENCE.  141 

actually  resorted  to  were  fallacious,  and  produced  the  same  charac- 
teristic appearances  upon  their  application  to  innocent  matter,  namely, 
the  ammoniacal  sulphate  of  copper  producing  the  green,  and  the  am- 
moniacal  nitrate  of  silver  producing  the  yellow  precipitate  on  being 
applied  to  an  infusion  of  onions  ;  and  that  the  experiment  with  the 
bile  was  also  fallacious,  since,  from  the  presence  of  phosphoric  acid, 
which  is  contained  in  all  the  fluids  of  the  human  body,  the  same  col- 
oured precipitate  would  be  thrown  down  by  putting  lunar  caustic 
into  a  solution  of  phosphate  of  soda.  It  was  to  no  purpose  to  urge 
that  a  decoction  of  onions  was  not  the  same  thing  as  that  particular 
preparation  of  onions  of  which  the  deceased  had  partaken,  and  that 
in  the  hands  of  the  witness  for  the  prosecution  this  experiment  had 
been  attended  \Nith  a  diflerent  result ;  the  facts  adduced  by  the  pris- 
oner's witnesses  conclusively  proved  that  the  appearances  produced 
by  the  tests  employed  might  have  been  produced  by  some  other  cause 
than  the  presence  of  arsenic,  and  therefore  that  they  were  fallacious 
and  inconclusive,  while  an  infallible  test  might  have  been  resorted  to. 
Thus  every  one  of  the  grounds  of  presumption  against  the  prisoner 
•was  successively  weakened,  if  not  destroyed  ;  though  his 
conduct  had  *naturally  created  impressions  unfavourable  [  "IST  ] 
to  the  last  degree  to  the  belief  of  his  innocence.* 

4.)  In  all  cases  of  this  kind  the  moral  evidence  from  the  conduct 
of  the  accused — his  antipathies  or  other  motives — his  possession  of 
the  means  of  death,  especially  if  unexplained  by  any  circumstance 
to  account  for  it  upon  an  innocent  hypothesis — his  declarations — his 
falsehoods,  subterfuges  and  evasions  to  prevent  examination  of  the 
body  or  to  induce  premature  interment — and  many  other  suspicious 
circumstances,  constitute  very  material  parts  of  the  res  gestce,  and 
furnish  a  clue  to  the  explanation  of  facts  which  would  otherwise  be  in- 
explicable. It  is  perfectly  clear  that  by  the  law  of  England  all  such 
facts  aiford  competent  and  relevant  evidence,  from  which  may  be  in- 
ferred the  criminal  administration  of  poison.  Mr.  Justice  Buller,  in 
Donellan's  case,  told  the  jury  that,  "  if  there  was  a  doubt  upon  the 
evidence  of  the  physical  witnesses,  they  must  take  into  their  consid- 
eration all  the  other  circumstances  either  to  show  that  there  was 
poison  administered  or  that  there  was  not,  and  that  every  part  of  the 
prisoner's  conduct  was  material  to  be  considered."!  To  the  same 
effect,  ]\Ir.  Justice  Abbott,  in  Donnall's  case,  said  that  "  there  were 

•  R«x  V.  Donnall,  Fraeer's  Short-hand  Report,  ui  supra, 
t  Gumey's  Short-hand  Report,  ut  supra,  p.  53. 


142  PEOOF   OF   THE    CORPUS    DELICTI   BY 

two  important  questions:  first,  did  the  deceased  die  of  poison,  and 
if  they  should  be  of  opinion  that  he  did,  then,  whether  thej  were 
satisfied  from  the  evidence  that  the  poison  was  administered  by  the 
prisoner  or  by  his  means  ?  There  were  some  parts  of  the  evidence 
which  appeared  to  him  equally  applicable  to  both  questions,  and 
those  parts  were  what  related  to  the  conduct  of  the  prisoner  during 
the  time  of  the  opening  and  inspection  of  the  body  ;  his  recommend" 
ation  of  a  shell  and  the  early  burial ;  to  which  might  be  added  the 

circumstances,  not  much  to  be  relied  upon,  relative  to 
[  *188  ]     his  endeavours  to  evade  his  apprehension."*     His  *Lord- 

ship  also  said,  "  If  the  evidence  as  to  the  opinions  of  the 
learned  persons  who  have  been  examined  on  both  sides  should  lead 
you  to  doubt  whether  you  should  attribute  the  death  of  the  deceased 
to  arsenic  having  been  administered  to  her,  or  to  the  disease  called 
cholera  morbus, — then,  as  to  this  question  as  well  as  to  the  other 
question,  the  conduct  of  the  prisoner  is  most  material  to  be  taken 
into  consideration  ;  for  he  being  a  medical  man  could  not  be  ignorant 
of  many  things  as  to  which  ignorance  might  be  shown  in  other  per- 
sons :  he  could  hardly  be  ignorant  of  the  proper  mode  of  treating 
cliolera  7norbus  ;  he  could  not  be  ignorant  that  an  early  burial  was 
not  necessary  ;  and  when  an  operation  was  to  be  performed,  in  order 
to  discover  the  cause  of  the  death,  he  should  not  have  shown  a  back- 
wardness to  acquiesce  in  it  ;  and  when  it  was  performing,  and  he 
attending,  he  could  not  surely  be  ignorant  that  it  was  material  for  the 
purposes  of  the  investigation  that  the  contents  of  the  stomach  should 
be  preserved  for  minute  examination."!  His  Lordship  also  said, 
"  The  conduct  of  the  prisoner,  his  eagerness,  in  causing  the  body  to 
be  put  into  a  shell,  and  afterwards  to  be  interred  speedily,  was  a 
circumstance  most  material  for  their  consideration,  with  reference  to 
both  the  questions  he  had  stated ;  for  although  the  examination  of 
the  body  in  the  way  set  forth,  and  the  experiments  that  were  made, 
might  not  lead  to  a  certain  conclusion  as  to  the  charge  stated,  that 
the  deceased  got  her  death  by  poison  administered  to  her  by  the 
prisoner,  yet  if  the  prisoner  as  a  medical  man  had  been  so  wicked 
as  to  administer  that  poison,  he  must  have  known  that  the  exami- 
nation of  the  body  would  divulge  it."| 

So  in  Tawell's  case,  Mr.  Baron  Parke  stated  to  the  jury  that, "  in 

considering  the  question,  whether  or  not  death  was  caused 
[  *189  ]     *by  prussic  acid,  they  were  not  to  abstain  from  looking  at 

the  conduct  of  the  prisoner  as  a  part  of  that  question  ; 

*  Frazer's  Short-hand  Report,  ut  supra,  p.  127.  t  lb,  161.  t  lb.  170. 


CIRCUMSTANTIAL   EVIDENCE.  143 

that  they  must  look  at  all  the  circumstances  in  the  case,  and  see 
whether  the  prisoner's  conduct,  and  the  thing  that  was  in  his  posses- 
sion, would  not  strengthen  them  in  the  conclusion,  that  the  scientific 
witnesses  had  properly  arrived  at  the  conclusion,  that  beyond  all 
doubt  in  their  minds  prussic  acid  was  the  cause  of  death  ;"  and  he 
added  that,  "  when  they  had  the  fact  proved  beyond  all  mistake  that 
prussic  acid  was  in  the  stomach,  they  could  not  forget  to  take  into 
consideration  that  this  was  after  a  violent  and  sudden  death,  for 
which  prussic  acid  would  account."  "You  must  judge,"  said  the 
learned  Baron,  "  of  the  truth  of  the  case  against  a  person  by  all  his 
conduct  taken  together." 

It  is  always  an  important  circumstance  of  moral  conduct,  that  the 
suspected  party  has  possessed  the  particular  kind  of  poison  which 
has  been  the  cause  of  death,  and  had  the  opportunity  of  administer- 
ing it.  Some  valuable  observations  upon  this  kind  of  evidence  were 
made  by  Mr.  Baron  Rolfe  in  a  case  before  him.  The  prisoner  was 
indicted  for  the  murder  of  his  wife,  who  was  taken  seriously  ill  on 
the  morning  of  the  25th  of  November  and  died  two  days  afterwards, 
with  symptoms  resembling  those  which  are  produced  by  an  irritant 
poison.  Poisoning  not  having  been  then  suspected,  the  body  was 
interred  without  examination ;  but  suspicions  having  afterwards 
arisen,  it  was  exhumed  in  the  month  of  June  following,  and  a  large 
quantity  of  arsenic  was  discovered  in  the  stomach.  Several  weeks 
after  the  apprehension  of  the  prisoner,  the  police  took  possession  of 
some  of  his  garments,  which  Avere  found  hanging  up  in  his  lodgings, 
in  the  pockets  of  which  arsenic  was  found.  In  his  address  to  the 
jury  Mr.  Baron  Rolfe  said,  "  Had  the  prisoner  the  opportunity  of 
administering  poison  ?  that  was  one  thing  :  Had  he  any  motive  to  do 
so  ?  that  was  another.  There  was  also  another  question, 
which  *wa8  most  important ;  it  was,  whether  the  party  [  *190  ] 
who  had  the  opportunity  of  administering  poison,  had 
poison  to  administer  ?  If  he  had  not  the  poison,  the  having  the 
opportunity  became  unimportant.  If  he  had  the  poison,  then  an- 
other question  arose,  did  he  get  it  under  circumstances  to  show,  that 
it  was  for  a  guilty  or  improper  object  ?  The  evidence  by  which  it 
was  attempted  to  trace  poison  to  the  possession  of  the  prisoner,  was, 
that  on  a  certain  occasion,  after  the  death  of  the  wife,  and  after  he 
himself  was  apprehended,  the  contents  of  the  pockets  of  a  coat, 
waistcoat  and  trowsers,  on  being  tested  by  the  medical  witnesses, 
were  found  to  contain  arsenic  ;  and  that,  a  week  afterwards,  another 
waistcoat  which  came  into  the  possession  of  the  policeman,  on  being 


144  PROOF  OF  THE  CORPUS  DELICTI  BY 

examined,  was  also  found  to  contain  arsenic.  Did  that  bring  home 
to  the  prisoner  the  fact  that  he  had  arsenic  in  his  possession  in  No" 
vember  ?  It  was  not  conclusive  that,  because  he  had  it  in  June,  he 
had  it  in  November.  He  (the  learned  judge)  inferred  from  what 
had  been  stated  by  the  medical  men,  that  the  quantity  of  arsenic 
found  in  the  pocket  of  the  clothes  was  very  small.  Now,  if  he  had 
it  in  a  larger  quantity  in  November,  and  it  had  been  used  for  some 
purpose,  being  a  mineral  substance,  such  particles  were  likely  to  re- 
main in  the  pockets,  and  finding  it  there  in  June  was  certainly  evi- 
dence that  it  might  have  been  there  in  larger  quantity  in  November ; 
but  obviously,  by  no  means  conclusive,  as  it  might  have  been  put  in 
afterwards.  But  connected  with  the  arsenic  being  found  in  the 
clothes,  there  were  other  considerations  which  he  thought  were 
worthy  to  be  attended  to.  The  prisoner  was  apprehended  on  the 
9th  of  June,  and  he  knew,  long  before  that  time,  than  an  inquiry 
was  going  on.  He  was  taken  up,  not  in  the  clothes  in  which  arsenic 
was  found  ;  and  a  fortnight  afterwards  a  batch  of  clothes  was  given 
up  in  which  arsenic  was  detected.  Now  if  arsenic  had  been 
found  in  the  clothes  he  was  wearing,  it  would  be 
[  *191  ]  *perfectly  certain,  in  the  ordinary  sense,  that  he  had  ar- 
senic in  his  possession.  But  it  was  going  a  step  further 
to  say  that,  because  arsenic  was  discovered  in  clothes  of  his,  acces- 
sible to  so  many  people  between  the  time  of  his  apprehension  and 
their  being  given  up,  it  was  there  when  he  was  apprehended  ;  in  all 
probability  he  thought  it  was,  but  that  was  by  no  means  the  necessa- 
ry consequence.  That  observation  was  entitled  to  still  more  weight, 
with  regard  to  the  waistcoat  last  given  up  to  the  police,  because  it 
was  not  given  up  till  three  weeks  after  the  prisoner  was  apprehend- 
ed, and  had  been  hanging  in  the  kitchen  accessible  to  a  variety  of 
persons.  If  any  one  had  had  a  diabolical  motive  or  wish  to  excite 
prejudice  against  the  prisoner,  and  to  create  a  piece  of  evidence 
against  him  which  did  not  in  truth  exist,  he  had  the  opportunity ; 
and  the  learned  counsel  for  the  defence  had  pointed  to  the  fact  of 
three  pockets  containing  arsenic  as  one  which  tended  to  show  that 
the  poison  must  have  been  placed  there  by  some  one  who  had  over- 
done the  thing  in  trying  to  bring  into  court  too  much  evidence. 
These  were  matters  which  the  jury  must  weigh  very  carefully.  It 
was  urged  also  that  arsenic  was  used  for  cattle.  It  might  be  so,  and 
it  might  be  that  the  prisoner  might  innocently  have  had  arsenic. 
The  circumstance  of  there  being  arsenic  in  so  many  pockets  ought 
not  to  be  lost  sight  of,  for  it  could  scarcely  be  conceived  that  a  guil- 


CIRCUMSTANTIAL  EVIDENCE.  145 

ty  person  should  be  so  utterly  reckless  as  to  put  the  poison  he  used 
into  every  pocket  he  had.  One  would  have  thought  that  ho  would 
have  kept  it  concealed,  or  put  it  only  in  some  safe  place,  for  the  im- 
mediate purpose  of  being  used  ;  and  it  was  worthy  of  observation 
that  it  did  not  appear  to  have  been  put  into  the  clothes  in  such  a 
way  as  it  would  have  been  put,  had  the  prisoner  been  desirous  to 
conceal  it."     The  prisoner  was  acquitted*. 

It  is  manifestly  impossible  to  assign  any  specific  sepa- 
rate *force  to  each  of  the   particular  heads  of  inculpato-     [  *192  ] 
ry  evidence  which  have  been  enumerated  ;  and  it  is  rare- 
ly, perhaps  never,  that  in  practice  the  case  depends  upon  the  distinct 
effect  of  any  one  of  them.     In  most  criminal  charges  the  proof  of 
the  corpus  delicti  is  separable  from  that  which  applies  to  the  discri- 
mination of  the  guilty  individual ;  but  it  is  not  so  in  cases  of  poison- 
ing, where  it  is  generally  impossible  to  obtain  conclusive  evidence  of 
the  corpus  delicti  irrespectively  of  the  explanatory  evidence  of  moral 
conduct  and  circumstances.     It  therefore  almost  of  necessity   hap- 
pens, that  there  is  a  concurrence  of  all  or  most  of  these  different 
kinds  of  evidence  ;  and   that  the  result  depends  not  merely  upon 
their  separate  force,   but  upon  that  additional  force  which  is  the  con- 
sequence of  this  combination. 

This  part  of  the  subject  may  be  advantageously  exemplified  and 
closed,  by  an  analysis  of  some  of  the  most  remarkable  cases  of 
charges  of  murder  by  poisoning  which  have  occurred  in  our  courts 
of  justice  ;  they  will  especially  illustrate  the  manner  in  which  the 
scientific  evidence  and  moral  facts  are  commonly  combined,  and  the 
high  degree  of  assurance  which  such  combined  proof  is  capable  of 
producing. 

John  Donellan,  Esq.,  was  tried  at  Warwick  spring  assizes,  1781, 
before  Mr.  Justice  Buller,  for  the  murder  of  Sir  Theodosius  Bough- 
ton,  his  brother-in-law,  a  young  man  of  fortune,  twenty  years  of  age, 
who  up  to  the  moment  of  his  death  had  been  in  good  health  and 
spirits,  with  the  exception  of  a  trifling  ailment,  for  which  he  occa- 
sionally took  a  laxative  draught.  Mrs.  Donellan  was  the  sister  of 
the  deceased,  and  together  with  Lady  Boughton  his  mother  liv- 
ed with    him  at  Lawford  Hall,  the  family  mansionf.     For    some 

*  Keg.  V.  Graham,  Carlisle  Summer  Assizes,  1845. 

t  It  was  stated  by  counsel,  but  does  not  appear  in  proof,  that  on  attaining  twenty- 
one  Sir  Theodosius  would  hare  been  entitled  absolutely  to  an  estate  of  £2000  per 
annum,  which  in  the  event  of  his  dying  under  that  age  would  have  descended  to  Mrs. 
Donellan. 

21 


146  PROOF  OF  THE  CORPUS  DELICTI  BY 

[  *193  ]  *time  before  the  death  of  Sir  Theodosius,  the  prison- 
er had  on  several  occasions  falsely  represented  his  health 
to  be  very  bad,  and  his  life  to  be  precarious.  On  the  29th  of  Au- 
gust, the  apothecary  in  attendance  sent  him  a  mild  and  harmless 
draught,  to  be  taken  the  next  morning.  In  the  evening  the  deceas- 
ed was  out  fishing,  and  the  prisoner  told  his  mother  that  he  had  been 
out  with  him,  and  that  he  had  imprudently  got  his  feet  wet,  both  of 
which  representations  were  false.  When  he  was  called  on  the  fol- 
lowing morning,  he  was  in  good  health  ;  and  about  seven  o'clock  his 
mother  went  to  his  chamber  for  the  purpose  of  giving  him  his 
draught,  of  the  smell  and  nauseousness  of  which  he  immediately 
complained,  and  she  remarked  that  it  smelt  like  bitter  almonds.  In 
about  two  minutes  he  struggled  very  much,  as  if  to  keep  the  medi- 
cine down,  and  Lady  Boughton  observed  a  gurgling  in  his  stomach  ; 
in  ten  minutes  he  seemed  inclined  to  dose,  but  in  five  minutes  after- 
wards she  found  him  with  his  eyes  fixed,  his  teeth  clenched,  and 
froth  running  out  of  his  mouth,  and  within  half  an  hour  after  taking 
the  draught  he  died.  Lady  Boughton  ran  down  stairs  to  give  orders 
to  a  servant  to  go  for  the  apothecary,  who  lived  about  three  miles 
distant ;  and  in  less  than  five  minutes  the  prisoner  came  into  the 
bedroom,  and  after  she  had  given  him  an  account  of  the  manner  in 
which  Sir  Theodosius  had  been  taken,  he  asked  where  the  physic-bot- 
tle was,  and  she  showed  him  the  two  bottles.  The  prisoner  then  took 
up  one  of  them  and  said,  "  Is  this  it  ?"  and  being  answered  "  yes," 
he  poured  some  water  out  of  the  water-bottle,  which  was  near,  into 
the  phial,  shook  it,  and  then  emptied  it  into  some  dirty  water,  which 
was  in  a  washhand  basin.  Lady  Boughton  said,  "  You  should  not 
meddle  with  the  bottle  t"  upon  which  the  prisoner  snatched  up  the 
other  bottle  and  poured  water  into  that  also,  and  shook  it,  and  then 
put  his  finger  to  it  and  tasted  it.  Lady  Boughton  again 
[*  194  ]  asked  what  he  was  *about,  and  said  he  ought  not  to  med- 
dle with  the  bottles  ;  on  which  he  replied  he  did  it  to  taste 
it,  though  he  had  not  tasted  the  first  bottle.  The  prisoner  ordered 
a  servant  to  take  away  the  basm,  the  dirty  things  and  the  bottles, 
and  put  the  bottles  into  her  hands  for  that  purpose  ;  she  put  them 
down  again  on  being  directed  by  Lady  Boughton  to  do  so,  but  sub- 
sequently removed  them  on  the  peremptory  order  of  the  prisoner. 
On  the  arrival  of  the  apothecary,  the  prisoner  said  the  deceased  had 
been  out  the  preceding  evening  fishing,  and  had  taken  cold,  but  he 
said  nothing  of  the  draught  which  he  had  taken.  The  prisoner  had 
a  still  in  his  own  room,  which  he  had  used  for  distilling  roses  ;  and  a 


CIRCUMSTANTIAL   EVIDENCE.  147 

few  days  after  the  death  of  Sir  Theodosius  he  brought  it  full  of  wet 
lime  to  one  of  the  servants  to  be  cleaned.  The  prisoner  made  seve- 
ral false  and  inconsistent  statements  to  the  servants,  as  to  the  cause 
of  the  young  man's  death  ;  and  on  the  day  of  his  death  he  wrote  to 
Sir  WilHam  Wheeler,  his  guardian,  to  inform  him  of  the  event,  but 
made  no  reference  to  its  suddenness.  The  coffin  was  soldered  up  on 
the  fourth  day  after  the  death.  Two  days  afterwards  Sir  WiUiam 
Wheeler,  in  consequence  of  the  rumours  Avhich  had  reached  him  of 
the  manner  of  Sir  Theodosius's  death,  and  that  suspicions  were  en- 
tertained that  he  had  died  from  the  effects  of  poison,  wrote  a  letter 
to  the  prisoner,  requesting  that  an  examination  might  take  place, 
and  mentioning  the  gentlemen  by  whom  he  wished  it  to  be  conduct- 
ed. The  prisoner  accordingly  sent  for  them,  but  did  not  exhibit  Sir 
William  Wheeler's  letter,  alluding  to  the  suspicion  that  the  deceased 
had  been  poisoned,  nor  did  he  mention  to  them  that  they  were  sent 
for  at  his  request.  Having  been  induced  by  the  prisoner  to  suppose 
the  case  to  be  one  of  ordinary  sudden  death,  and  finding  the  body 
in  an  advanced  state  of  putrefaction,  the  medical  gentlemen  declin- 
ed to  make  the  examination,  on  the  ground  that  it  might 
be  attended  with  personal  danger.  *0n  the  following  day  [  *195  ] 
a  medical  man,  who  had  heard  of  their  refusal  to  exam- 
ine the  body,  offered  to  do  so  ;  but  the  prisoner  declined  his  offer, 
on  the  ground  that  he  had  not  been  directed  to  send  for  him.  On 
the  same  day  the  prisoner  wrote  to  Sir  William  Wheeler  a  letter,  in 
which  he  stated  that  the  medical  men  had  fully  satisfied  the  family, 
and  endeavoured  to  account  for  the  event  by  the  ailment  under 
which  the  deceased  had  been  suffering ;  but  he  did  not  state  that 
they  had  not  made  the  examination.  Three  or  four  days  afterwards, 
Sir  William  Wheeler  having  been  informed  that  the  body  had  not 
been  examined,  wrote  to  the  prisoner  insisting  that  it  should  be  done, 
which  however  he  prevented,  by  various  disingenuous  contrivances, 
and  the  body  was  interred  without  examination.  In  the  meantime, 
the  circumstances  having  become  known  to  the  coroner,  he  caused 
the  body  to  be  disinterred  and  examined  on  the  eleventh  day  after 
death.  Putrefaction  was  found  to  be  far  advanced  ;  and  the  head 
was  not  opened,  nor  the  bowels  examined,  and  in  other  respects  the 
examination  was  incomplete.  When  Lady  Boughton,  in  giving  evi- 
dence before  the  coroner's  inquest,  related  the  circumstance  of  the 
prisoner  having  rinsed  the  bottles,  he  was  observed  to  take  hold  of 
her  sleeve,  and  endeavour  to  check  her  ;  and  he  afterwards  told  her, 
that  she  had  no  occasion  to  have  mentioned  that  circumstance,  but 


148  PROOF  OF  THE  CORPUS  DELICTI  BY 

only  to  answer  such  questions  as  were  put  to  her ;  and  in  a  letter  to 
the  coroner  and  jury,  he  endeavoured  to  impress  them  with  the  be- 
lief, that  the  deceased  had  inadvertently  poisoned  himself  with  ar- 
senic, which  he  had  purchased  to  kill  fish.  Upon  the  trial,  four  me- 
dical men,  three  physicians  and  an  apothecary,  were  examined  on 
the  part  of  the  prosecution,  and  expressed  a  very  decided  opinion, — 
mainly  grounded  upon  the  symptoms,  the  suddenness  of  the  death, 
the  post  mortem  appearances,  the  smell  of  the  draught  as  observed 
by  La'ly  Boughton,  and  the  similar  effects  produced  by 
[  *196  ]  'experiments  upon  animals, — that  the  deceased  had  been 
poisoned  with  laurel  water  ;  and  one  of  them  stated  that, 
on  opening  the  body,  he  had  been  affected  with  a  biting  acrimonious 
taste,  like  that  which  affected  him  in  all  the  subsequent  experiments 
with  laurel  water.  An  eminent  surgeon  and  anatomist  examined  on 
the  part  of  the  prisoner  stated  a  positive  opinion,  that  the  symptoms 
did  not  necessarily  lead  to  the  conclusion  that  the  deceased  had 
been  poisoned,  and  that  the  appearances  presented  upon  dissection 
explained  nothing  but  putrefaction.  The  prisoner  was  convicted  and 
executed*. 

This  trial  has  given  rise  to  much  diversity  of  opinion  amongst  legal 
and  medical  men  ;  and  certainly  the  scientific  evidence  was  far  from 
the  completeness  and  exactness  which  are  expected  in  the  present 
state  of  science.  But,  nevertheless,  when  that  evidence,  imperfect 
as  it  was,  is  viewed  in  connection  with  the  numerous  moral  circum- 
stances, incapable  of  any  explanation  except  as  the  manifestations  of 
a  guilty  mind,  it  is  difficult  to  arrive  at  any  different  conclusion  from 
that  deduced  by  the  jury. 

An  elderly  woman  was  tried  at  Bristol  summer  assizes,  1835,  be- 
fore the  Recorder  of  that  city,  for  the  murder  of  a  widow  woman, 
about  sixty  years  of  age,  who  was  possessed  of  considerable  property 
in  money,  and  after  living  in  lodgings  at  various  places  for  several 
years,  ultimately  went  to  live  with  the  prisoner,  who  kept  a  lodging 
house  at  Bristol.  In  October  1833  the  deceased  became  indisposed 
from  a  cold,  and  in  the  evening  of  the  26th  of  that  month,  the  pris- 
oner gave  her  some  gruel,  into  which  she  was  observed  by  a  young 
woman,  hired  to  wait  on  the  deceased,  to  put  some  pinches  of  yellow 
powder,  which  she  stated  to  be  to  relieve  her  from  pain  ;  after  which 
she  twice  washed  her  hands.  The  servant  remarked  to  the  prisoner 
upon  this  as  an  unusual  mode  of  administering  a  powder. 

•  Gurney's  Shorthand  Report,  ut  supra. 


CmCUMSTANTIAL   EVIDENCE.  149 

*The  prisoner  told  the  servant  not  to  take  anything  out     [  *19T  ] 
of  the  vessels  used  by  the  deceased,  falsely  representing 
her  to  be  dirty  in  her  habits,  and  cautioned  her  not  to  tell  the  de- 
ceased that  she  had  put  anything  into  the  gruel,  representing  that  if 
she  knew  there  was  anything  in  it  she  would  not  take  it.     The  pris- 
oner carried  away  what  was  left  of  the  gruel ;  and  in  a  few  minutes 
after  the  deceased  had  taken  it,  she  complained  of  being  poorly,  and 
in  half  an  hour  became  ill ;  vomiting,  purging  and  violent  pain  en- 
sued, and  in  about  two  hours  she  expired.     The  prisoner  had  em- 
ployed a  man  about  six  days  previously  to  purchase  arsenic  to  poison 
rats,  a  pretext  which  was  proved  to  be  groundless.     The  deceased 
was  buried  on  the  28th  of  October ;  and  her  friends  did  not  hear  of 
her  death  until  many  months  afterwards.     From  the  change  which 
took  place  in  the  prisoner's  habits  and  mode  of  living  immediately 
afterwards,  from  her  denial  that  the  deceased  had  left  any  property, 
and  from  some  other  circumstances,  suspicions  was  excited,  and  the 
corpse  was  disinterred  and  examined  on  the  24th  of  December,  1834, 
and  found  to  be  in  a  remarkable  state  of  preservation.     The  mucous 
membrane  of  the  stomach  and  duodenum  was  smeared  very  thickly 
with  a  large  quantity  of  a  yellow  substance,  which  penetrated  in 
patches  the  coats  of  the  stomach  and  intestines  ;  and  where  the  spots 
had  penetrated,  the  inside  of  the  intestinal  canal  was  stained  to  a 
much  greater  extent  than  the  outside,  so  that  it  must  have  penetra- 
ted from  the  interior  to  the  exterior,  as  would  be  the  effect  of  the 
matter  having  been  taken  into  the  stomach."    The  yellow  powder 
found  in  the  stomach  was  submitted  to  various  experiments.     Hav- 
ing been  dried,  some  of  it  was  triturated  with  carbonate  of  soda  and 
charcoal,  and  introduced  into  a  reducing  tube,  and  immediately  a 
volatile  metallic  body  was  formed,  which  was  metallic  arsenic  ;  the 
metallic  arsenic  was  then  oxydized,  when  it  sublimed  into  a  white  vol- 
atile oxide,  which  was  characteristic  of  arsenious  acid  ;  a 
*solution  was  then  made   of  the  oxide  in  two  drops  of     [  *198  ] 
water,  and  a  small  portion  of  ammoniacal  nitrate  of  silver 
was  added,  when  there  was  formed  the  characteristic  lemon  yellow 
precipitate.     Into  another  portion  a  minute  quantity  of  ammoniacal 
sulphate  of  copper  was  put,  which  immediately  produced  the  green 
precipitate  of  Scheele.     Afterwards  a  larger  quantity  was  reduced, 
and  a  stream  of  sulphuretted  hydrogen  gas  passed  through  it,  and 
the  original  orpiment,  or  sulphuret  of  arsenic,   reproduced.     These 
various  experiments  were  repeated  five  or  six  times,  and  uniformly 
with  the  same  results.     The  stomach  was  then  washed  in  water,  and 


150  PROOF  OF  THE  CORPUS  DELICTI  BY 

the  substance,  allowed  to  precipitate  and  dried  up,  was  weighed  and 
found  to  contain  seventeen  grains.  Lastly,  the  animal  matter  was 
destroyed  and  the  arsenic  dissolved,  and  the  sulphur  turned  into 
sulphuric  acid  and  precipitated  by  sulphuretted  hydrogen  gas,  which 
reproduced  sulphuret  of  arsenic.  From  thirteen  grains  of  the  mixed 
matter  were  obtained  four  grains  of  sulphuret  of  the  arsenic  ;  and 
there  were  still  some  portions  adhering  to  the  stomach  which  could 
not  be  washed  off  ;  and  some  had  been  evacuated  by  vomiting.  The 
prisoner  was  convicted  and  executed. 

No  case  of  this  kind  ever  exceeded  in  interest  and  completeness 
that  of  John  Tawell,  a  man  about  sixty  years  of  age,  who  was  tried 
at  Aylesbury  spring  assizes,  1845,  before  Mr.  Baron  Parke,  for  the 
murder,  by  means  of  prussic  acid,  of  a  woman  who  had  lived  as 
servant  with  him  for  several  years,  and  borne  him  two  children. 
Several  years  ago,  on  his  desiring  to  marry,  she  had  gone  into  seclu- 
sion, and  had  ever  since  received  from  him  a  regular  allowance. 
The  prisoner  was  seen  by  a  neighbor  to  enter  the  deceased's  house 
near  Slough,  between  four  and  five  o'clock  in  the  afternoon  of  the 
1st  of  January  preceding.  Between  six  and  seven  o'clock, 
[  *199  ]  hearing  a  stifled  scream  in  *the  deceased's  house,  she 
took  a  candle,  and  going  to  her  own  door  saw  the  prisoner 
coming  out  of  it.  Feaiing  that  her  neighbor  was  ill,  she  went  to  the 
gate  of  a  small  garden  which  led  to  her  house,  where  she  met  the 
prisoner,  who  seemed  agitated  and  could  not  open  it,  which  she  did 
for  him.  On  getting  up  to  the  house  she  found  the  deceased  lying 
motionless  on  the  floor,  her  eyes  fixed,  foaming  at  the  mouth  and 
breathing  convulsively.  On  the  table  there  was  a  bottle  partly  filled 
with  porter,  two  tumblers,  one  of  them  half  filled  with  porter,  and 
the  other  with  only  a  little  froth  in  it.  Medical  assistance  was  im- 
mediately procured,  and  a  vein  was  opened  in  the  arm,  from  which 
about  an  ounce  of  blood  flowed,  but  life  was  extinct.  The  deceased 
previously  to  the  prisoner's  visit  had  been  in  good  health,  and  had 
intimated  to  her  neighbors  that  she  expected  to  see  her  "  old  master" 
in  the  course  of  the  day,  and  between  six  and  seven  o'clock  she  went 
to  a  neighboring  tavern  to  procure  a  bottle  of  porter.  After  leaving 
the  deceased's  house,  the  prisoner  was  seen  about  seven  o'clock  run- 
nino-  towards  Slough,  where  he  got  into  an  omnibus  which  was  pro- 
ceeding towards  Eton,  at  some  distance  from  that  place  he  alighted, 
desiring  to  be  set  down  at  Hershel  House,  where  however  he  did 
not  call.  At  forty  minutes  past  seven  the  prisoner  had  again  re- 
turned to  Slough,  and  in  two  or  three  minutes  afterwards  proceeded 


CIRCUMSTANTIAL  EVIDENCE.  151 

by  railway  back  to  London.  In  consequence  of  these  suspicious  cir- 
cumstances a  communication  was  made  from  Slough  soon  after  the 
prisoner  left,  by  means  of  the  electric  telegraph  to  the  Paddington 
station,  where  upon  his  arrival  he  got  into  an  omnibus,  and  was 
watched  by  a  police  oiEcer  in  plain  clothes,  who  got  up  behind  and 
acted  as  conductor,  and  traced  him  to  the  Jerusalem  Coffee-house  on 
Cornhill,  where  he  called  about  half-past  nine,  and  from  thence  to  a 
lodging-house,  where  he  slept.  On  the  following  morning 
the  prisoner  was  taken  into  custody,  and  *on  being  told  [  *200  ] 
by  the  officer  of  the  cause  of  his  apprehension,  declared 
that  he  had  not  been  at  Slough  the  preceding  day.  It  was  discov- 
ered that  on  the  day  of  the  deceased's  death  the  prisoner  had  pur- 
chased a  bottle  of  Scheele's  prussic  acid  at  a  druggist's  shop  in  Lon- 
don, that  about  three  o'clock  in  the  afternoon  he  had  called  at  the 
Jerusalem  Coffee-house  for  the  purpose  of  leaving  a  great-coat  and 
parcel,  for  which  he  said  he  would  call  about  half  past  nine,  stating 
that  he  was  going  to  dine  at  the  west-end,  that  instead  of  doing  so 
however,  he  went  by  railway  at  four  o'clock  from  the  Paddington 
station  to  Slough,  and  that  on  the  following  morning,  before  his  ap- 
prehension, he  had  purchased  at  the  samj  shop  where  he  had  ob- 
tained the  first  quantity  a  further  supply  of  prussic  acid,  having, 
as  he  said,  lost  that  which  he  obtained  the  day  before.  To  the  offi- 
cer in  whose  custody  he  was  placed,  during  the  sitting  of  the  coro- 
ner's inquest,  the  prisoner  stated,  that  the  deceased  had  formerly 
lived  with  him  as  servant,  and  was  a  very  good  servant,  but  a  very 
bad-principled  woman, — that  he  had  been  in  the  habit  of  sending 
her  money, — that  she  had  pestered  him  by  letters,  in  which  she  had 
threatened  to  destroy  herself  if  he  did  not  send  her  some, — that  on 
the  evening  in  question  they  had  an  altercation,  in  the  course  of 
which  he  had  told  her  he  would  not  allow  her  any  more  money, — 
that  she  then  asked  him  for  some  porter,  which  she  went  for  and 
procured  from  a  neighboring  tavern, — that  she  poured  something 
into  it  from  a  small  phial,  and  drank  of  it,  and  then  began  to  throw 
herself  about, — and  that  he  left,  thinking  her  illness  feigned,  or  else 
would  have  called  some  one.  The  prisoner  attempted  to  explain  his 
possession  of  prussic  acid  by  stating  that  he  had  been  in  the  habit  of 
using  it  on  account  of  varicose  veins ;  but  no  proof  was  adduced 
that  he  had  suffered  from  that  cause.  It  was  proved  that  the  de- 
ceased had  been  extremely  ill  after  drinking  part  of  a 
*bottle  of  porter,  for  which  the  prisoner  had  sent  her  [  *201  ] 
out  on  a  preceding  visit,  about  three  months  before,  when 


152  PROOF   OF   THE   CORPUS   DELICTI   BY 

he  paid  to  her  her  allowance.  On  examination  of  the  body  the  day 
after  death,  the  brain  and  viscera  were  found  to  be  healthy.  The 
odour  of  prussic  acid  was  perceptible  as  soon  as  the  body  was  opened, 
although  no  such  odour  had  been  remarked  upon  smelling  at  the 
mouth.  No  deleterious  ingredients  were  found  in  the  porter  which 
remained  in  the  bottle  and  glass.  After  a  portion  of  the  contents  of 
the  stomach  had  been  tested  for  several  other  poisons,  another  portion 
was  put  into  a  tubulated  retort,  to  which  was  added  a  very  small 
quantity  of  dilute  sulphuric  acid  ;  the  retort  was  then  placed  on  the 
sand-bath,  and  a  portion  distilled  off  and  collected,  about  two  drachms 
of  which  were  put  into  a  test  glass,  to  which  a  grain  of  green  sul- 
phate of  iron  was  added,  and  when  this  was  dissolved,  a  small 
quantity  of  potassa.  Muriatic  acid  being  added  to  this  mixture, 
Prussian  blue  instantly  appeared,  showing  the  presence  of  cyanogen 
in  some  form.  It  was  stated  that  the  presence  of  the  fluid  would 
prevent  the  sand-bath  from  decomposing  the  animal  matters  present 
in  the  contents  ;  but  to  exclude  all  possibility  of  referring  the  pois- 
onous matters  to  such  decomposition,  another  portion  of  the  contents 
of  the  stomach  was  distilled  at  a  lower  temperature  by  the  water- 
bath,  to  which  salt  was  added  for  the  purpose  of  increasing  the  tem- 
perature, which  by  that  means  can  be  raised  from  212°  to  226° ; 
when,  on  applying  the  same  tests  as  before,  prussian  blue  was  again 
found  in  considerable  quantity.  Nitrate  of  silver  was  then  added  to 
a  portion  of  the  fluid,  for  the  purpose  of  separating  the  cyanogen  it 
contained,  when  it  threw  down  an  insoluable  white  precipitate  form- 
ing cyanide  of  silver,  which  being  put  into  a  small  retort  with  a  very 
small  quantity  of  muriatic  acid,  and  carefully  distilled  over  into  a 

cool  receiver,  yielded  rather  more  than  a  drachm  of  diluted 
[  *202  ]     prussic  acid,  which,  *on  being  again  treated  with  nitrate 

of  silver,  yielded  the  cyanide  of  silver.  This  precipi- 
tate could  not  be  dissolved  in  cold  nitric  acid,  but  was  dissolved  by 
boiling  nitric  acid  ;  and  the  gas  produced  by  heating  the  cyanide  of 
silver  was  then  collected  and  burnt,  producing  a  pecuUar  purple-col- 
oured flame,  characteristic  of  the  presence  of  cyanide  of  silver. 
The  quantity  of  cyanide  of  silver  actually  obtained  was  1*455  grains, 
very  slightly  contaminated  with  chloride  of  silver,  amounting  to  a 
quantity  which  could  not  be  collected  and  weighed,  for  which  allow- 
ing "025  grains,  the  quantity  of  cyanide  of  silver  was  1*43  ;  and  as 
the  quantity  of  matter  operated  upon  was  to  the  whole  contents  of 
the  stomach  as  51  to  180,  the  latter  must  have  contained  5*047 


CIRCUMSTANTIAL  EVIDENCE.  153 

grains  of  cyanide  of  silver,  which  are  equivalent  to  1-002  grains  of 
hydrocyanic  or  prussic  acid,  or  50  grains  of  prussic  acid  of  the 
strength  of  the  London  Pharmacopoea, — a  quantity  more  than  suffi- 
cient to  destroy  life. 

It  was  urged  for  the  prisoner,  that  the  poison  might  have  been 
generated  from  apples,  of  which  some  pulp  was  found  in  the  stomach, 
but  this  subterfuge  was  disproved  by  the  circumstance  that  prussic 
acid  is  contained  only  in  the  pips,  and  could  not  be  obtained  except 
by  distillation  ;  whereas  it  had  been  smelt  on  opening  the  body,  when 
it  was  not  possible  that  it  could  have  been  produced  by  distillation  ; 
and  by  a  satisfactory  experiment  it  was  shown  that  from  the  pips  of 
fifteen  apples  there  was  obtained  only  an  inappreciable  quantity. 
Slight  evidence  was  adduced  of  pecuniary  embarrassment,  and  a 
desire  to  absolve  himself  from  the  burden  of  his  allowance  to  the 
deceased  was  suggested  as  the  ^prisoner's  motive  for  the  commission 
of  so  horrid  a  crime.  The  jury  returned  a  verdict  of  guilty,  and 
the  prisoner  was  executed  ;  having  before  his  execution  made  a  full 
confession  of  his  guilt,  as  also  that  he  had,  as  had  been 
suspected,  made  a  former  attempt  to  poison  *the  de-  [  *203  ] 
ceased  by  means  of  morphia,  which  he  had  mixed  with  the 
porter  of  which  his  unsuspecting  victim  had  partaken,  stating  his  mo- 
tive to  have  been  to  prevent  his  criminal  connexion  from  becoming 
known  to  his  wife,  of  which  he  lived  in  apprehension.  The  reports 
of  criminal  justice  present  no  more  satisfactory  case  of  circumstan- 
tial evidence,  whether  as  regards  the  scientific  testimony  or  the  moral 
facts ;  and  all  the  circumstances  conclusively  rebutted  the  prisoner's 
crafty  attempt  to  account  for  the  catastrophe  by  self-destruction. 


SECTION    5. 


APPLICATION   OF   THE    GENERAL    PRINCIPLE   TO    PROOF   OF   THE   COR- 
PUS  DELICTI   IN    CASES    OF   INFANTICIDE. 

Of  all  crimes,  that  of  Infanticide  perhaps  presents  the  greatest 
difficulties  in  the  establishment  of  the  corpus  delicti. 

1.)  Among  the  embarrassments  peculiar  to  cases  of  this  nature 
must  be  mentioned,  the  occasional  uncertainty  and  inconclusiveness 
of  the  symptoms  of  pregnancy,  the  fundamental   fact  to  be  proved*, 

*  Home's  Comm.  ut  supra,  p.  4(4. 

22 


154  P&OOF  Of  THS  COBPUS  DBLICXf  BY 

which  maj  Fesemble  and  be  mistaken  for  appearances  caused  by  ob- 
stmetioos  or  spoiioas  graTiditr*.  In  a  remarkable  case  of  this  kind, 
the  sospcion  of  pr^nanej  arose  principally  ficom  the  balk  of  the 
deceased  while  liTing,  conpled  with  circmnstances  of  conduct  which 
denoted  the  existence  of  an  improper  &miliarity  between  the  par- 
ties, and  from  the  discovery  npon  po^  mortem  examination  of  what 
was  believed  by  the  witne^es  for  tiie  prosecution  to  be  the  placental 
mark.  Four  medical  wim^ses  expre^ed  the  strongest 
[  *2(M:  ]  belief,  that  the  *deceased  had  been  recenilT  delivered  of 
a  child  nearly  amie  to  maturity  :  wUle  on  the  other  hand, 
it  was  proved  that  die  had  been  subject  to  obstructions  ;  and  it  was 
deposed  that  Ac  appearances  of  the  nterus  might  be  accounted  for 
by  hv^tids,  a  species  of  dropsy  in  that  part  of  the  body,  and  that 
what  was  fhoo^t  to  be  the  placental  m^k  might  be  the  pediculi  by 
which  thev  were  attached  to  the  internal  part  of  the  internal  surface 
of  the  wombf.  The  learned  jnd^  said  to  the  jury,  that  it  was  a 
very  unfortunate  thing,  that  upon  every  particular  point  they  had  to 
rest  upon  conjecture  :  that  it  was  a  conjecture  to  a  certain  extent 
that  the  deceased  ^las  widi  duld,  and  that  it  was  conjecture  to  a 
certain  degree  that  any  means  were  used  to  procure  abortion ;  and, 
if  they  were  used,  that  it  was  conjectare  that  the  prisoner  was  privy 
to  die  administration  of  them. 

2.}  It  must  be  deaiiy  proved  that  a  duld  has  been  bom  alive, 
and  acquired  an  independent  circulation  and  existence ;  it  is  not 
enon^  that  it  has  breathed  in  the  course  of  its  birth:^  ;  but  if  a 
child  has  been  whdly  bom,  and  is  alive,  and  has  acquired  an  inde- 
pendent circulation,  it  is  not  material  that  it  is  soli  connected  wit^. 
its  mother  by  the  umbilical  cord§,  nor  is  it  essential  that  it  should 
have  breathed  at  the  time  it  was  killed,  as  many'  cluldren  are  bom 
alive  and  yet  do  not  breathe  for  some  time  after  birth  jj. 

Whether  a  child  has  been  bom  alive  or  not  is  frequently  a 
questMHi  of  coimderable  difficulty;  and   it  is  an   admonitory  con* 

•  Bex  r.  Bate.  Warwick  Sonmer  Asaues,  1809.  Rex  v.  Fetgnaoa,  Bnniett's  C 
L.  Mt  stpm,  p.  574. 

t  Eez  r.  ABgw&,  rMmfatPr  Avtamn  Aanses,  1808,  eoram  Mr.  Justice  Cfaambre, 
SiMBt-liaBd  Bqmft.    Bmu^s  C  L.  cf  SootL  p.  675. 

I  Bexr.Fb(]bfln,5C.&  P.39^9.  Bex  •.  Eoodi,  A.  636.  Rex  «.  Cratdder.  7  ti. 
514.     Rex  r.  SellJa,  &.  856. 

i  Res.  r.  Reerea  9  ib.  25.  Beg.  c.  Wr^fct,  &.  7»4  Reg.  r.Trilloe,  1  C  &  M. 
to-D. 

51  R«x  r.  Bmc.  6  C  t  P.  S-bO. 


CSSCmSSTA'STIAL  EVIBEirCS.  155 

adentioii,  that  scientific  tests  nMeh  have  been  *eoik-  [  ^S05  3 
sidered  as  infaflible,  with  tlie  adTsoce  <^  knowledge  hxwe 
been  found  to  be  Sdiacioiis.  Sneb  is  the  case  with  reused  to  Idie 
hydrostatic  test,  &om  tiie  indieatioiis  of  which  in  Sjinier  times  maaaj 
won^n  haTC  suffered  the  last  penahj  of  the  law.  On  the  trial  of 
a  woman  at  Winchester  spaing  asi^zies,  IBS^,  it  was  pro>ied  thai'  the 
Inn^  were  inflated ;  which  the  medical  witness  said  would  not  hare 
been  the  case  if  the  child  had  been  sttQ-bom ;  bat  he  stated,  in  asr 
swer  to  a  question  from  Mr.  Baron  Gvrnej,  that  if  the  child  had 
£ed  in  die  birth  the  lon^  might  hare  been  inflated,  npon  which  he 
stopped  the  ease*.  A  single  sab,  it  appears,  is  soSeient  to  inflate 
the  hm^,  thoogh  the  child  die  in  the  act  of  Irirthf .  A  yoong  wo- 
man was  tried  before  Mr.  BartMi  Parke  ^  the  nrarder  of  her  female 
child ;  the  throat  was  cat,  and  &e  woond  had  dSvided  the  ri^il  joga- 
lar  Tein ;  the  Inngp  floated  in  water,  and  were  fonnd  qq  cnlting  them 
to  be  inflated :  bal  it  was  deposed  Idial  this  test  oralj  showed  tha& 
the  child  mi^  hare  breadied,  and  not  that  it  had  been  bom  afire, 
and  ^t  there  are  instances  <^  children  being  lacerated  in  the  throat 
in  the  act  of  defirerr.  On  the  dose  of  the  case  for  the  prosecatioD, 
HiS  learned  judge  asked  die  jurj  whedier  thej  were  satisfied  that 
the  child  was  b<Hn  alire,  and  that  die  wound  was  inflicted  hj  the 
primmer  widi  the  intention  of  destroying  fife ;  as  if  thej  entertained 
an  J  doubt  on  these  points,  it  would  be  umieoessarj  to  go  intn  the 
eYidence  on  bdialf  of  the  pr^oner.  The  jary  returned  a  Terdict  of 
acquittal:^. 

3.)  It  is  a  further  source  of  uncenaincj  in  cases  <^  mis  aacure, 
that  circumstances  of  presumption  frequentlj  adduced  as  indieatiTe 
of  die  crime  of  murder,  maj  commonlj  be  aeeounfed  fin-  hj  die 
agency  of  less  mafignant  motiTes.  Concealment  of  pteg- 
nancy  and  defiTCiy  may  pro<%ed  even  *%KMn  meiitoiious  f  *-06  ] 
modTes ;  as  where  a  married  woman  resorted  to  such 
concealment  in  order  to  screen  her  hu^iand,  who  was  a  deserter, 
firom  discoTery^.  Severe  must  be  the  strn^^e  between  die  oj^posing 
motiTes  of  shame  and  affection,  before  a  mother  can  contemplate,  and 
stiD  more  so  before  she  <^n  fiurm  and  execute,  the  dreadfiol  and  un- 
natural resolution  of  taking  away  die  fife  of  her  own  ol&pring.  The 
unhappy  object  of  diese  conflicting  motives  is  commonly  the  victioi 

*  Bsx  r.  Sin^soo,  CanmM  on  tilie  Fkmf  of  lofiMtkide.  p^  40. 
t  Bexr.  Davidsoo,  IHame's  Comm.  aCxapro,  4S6. 
t  Rex  V.  GrooBaU,  Wtrnte^tsx  Sfring  Asaaes^  1S37. 
^  Bex  7.  Sterol  Bmaetfs  CL  L.  «r  npra,  p.  97%. 


156  PROOF   OF   THE   CORPUS   DELICTI   BY 

of  brutality  and  treachery.  Deserted  by  a  heartless  seducer,  and 
scorned  by  a  merciless  -world,  scarcely  any  condition  of  human  weak- 
ness can  be  imagined  more  calculated  to  excite  the  compassion  of 
the  considerate  and  the  humane*.  The  wisdom  and  humanity  of  the 
lec^islature,  in  accordance  -with  the  spirit  of  the  times,  have  led  to  the 
repeal  of  the  cruel  rule  of  presumption  created  by  statute  21  Jac. 
1.  c.  27,  which  made  the  concealment  of  the  death  of  an  illegiti- 
mate child  by  its  mother  conclusive  evidence  of  murder,  unless  she 
made  proof  by  one  witness  at  least  that  the  child  was  bom  dead  ;  a 
rule  which  had  too  long  survived  the  barbarous  age  in  which  it  ori- 
oinated,  and  under  which  it  is  but  too  probable  that  many  women 
have  unjustly  sufferedt :  and  the  endeavouring  to  conceal  the  birth 
of  a  child  by  secret  burying,  or  otherwise  disposing  of  the  body,  in- 
stead of  being  treated  as  a  conclusive  presumption  of  murder,  has 
been  made  a  substantive  misdemeanor^. 

4.)  The  casualties  which  even  in  favourable  circumstances  are  in- 
separable from  parturition,  must  be  incalculably  aggravated  by  the 
perplexities  incidental  to  illegitimate,  clandestine  and  unassisted 
birth,  from  the  impulses  of  shame  and  alarm,  the  desire  of  conceal- 
ment, the  want  of  assistance  and  sympathy,  and  occasion- 
[  *20T  ]  ally  from  the  'mother's  inability  to  render  the  attentions 
requisite  to  preserve  infant  life ;  and  there  have  been 
cases  in  which  even  the  very  means  resorted  to,  under  the  terror  of 
the  moment,  to  facilitate  birch  have  been  the  unintentional  cause  of 
death.  For  these  reasons,  wounds  and  other  marks  of  violence  are 
not  necessarily  considered  as  indicative  of  wilful  injury,  and  are  not 
therefore  sufficient  to  warrant  a  conviction  of  murder,  unless  the  con- 
comitant circumstances  clearly  manifest  that  they  were  knowingly 
inflicted  upon  a  body  bom  alive.  Nor  are  these  principles  of  con- 
straction  peculiar  to  our  own  law  ;  it  is  believed  that  they  prevail 
generally,  if  not  universally;  in  the  application  of  the  criminal  law 
to  cases  of  this  nature§. 

It  follows  from  the  preceding  considerations,  that  though  the  facta 
may  justify  extreme  suspicion  that  death  has  been  the  result  of  in- 
tentional violence,  yet  if  they  do  not  entirely  exclude  every  other 
possible  hypothesis  by  which  it  may  be  reasonably  accounted  for,  the 
soundest  principles  of  justice,  and  a  proper  regard  to  the  fallibility 
of  human  judgment  in  cases  so  mysterious  as  these  cases  most  fre- 

*  See  1  Hume's  Comm.  462.  t  Ibid,  p.  486. 

t  St.  9  Geo.  IV.  c.  31.  s.  14.  §  AlIJson'5  Princ.  p.  159. 


CIRCUMSTANTIAL   EVIDENCE.  157 

quently  are,  combine  to  forbid  the  adoption  of  a  conclusion  so  abhor- 
rent to  nature  and  humanity,  and  the  infliction  of  a  punishment 
which  admits  of  no  recall. 

It  has  been  thought  that  in  cases  of  this  kind,  the  feelings  of  hu- 
manity have  been  permitted  to  bias  the  strict  course  of  judicial  truth, 
and  that  countenance  has  been  given  to  subtle  and  strained  hopothe- 
ses  for  the  explanation  of  circumstances  of  conclusive  presumption*. 
If  that  opinion  ■svere  correct,  it  would  constitute  a  serious  reproach 
upon  the  administration  of  justice,  and  would  show  that  the  law  is 
not  in  harmony  with  public  feeling :  but  it  may  be  doubted  whether 
sufficient  weight  has  been  given  to  the  difficulties  of  proof 
inseparably  incidental  to  cases  of  this  'description,  and  [  *20S  ] 
whether,  in  fact,  acquittals  often  take  place  where  the 
crime  has  been  so  clearly  and  satisfactorily  proved  as  entirely  to 
dispel  all  doubt,  and  to  produce  complete  and  undoubting  assur- 
ance. 

The  discussion  and  illustration  of  the  rules  and  principles  of  evi- 
dence, in  reference  to  the  proof  of  the  corpus  delicti,  might  be  ex- 
tended to  an  examination  of  their  apnlication  to  other  offences  ;  but 
the  subject  has  been  sufficiently  exemphfied  for  the  purposes  of  this 
Essay,  and  such  an  extended  examination  would  therefoi'e  be  super- 
fluous and  transgress  its  legitimate  limits.  The  cases  which  have 
been  cited  strikingly  exhibit  the  strict  accordance  between  judicial 
practice  and  the  dictates  of  enlightened  reason. 

•  Whately  on  Secondary  Punishments,  p.  108. 


158  FORCE   AND    EFFECT   OF 


[*209]  'CHAPTER    VIII. 


OF   THE   FORCE   AND  EFFECT    OF   CIRCUMSTANTIAL 
EVIDENCE.  — CONCLUSION. 


SECTION     1. 
GENERAL   GROUNDS    OF   THE   FORCE    OF   CIRCUMSTANTIAL    EVIDENCE. 

In  considering  the  force  and  eiFect  of  circumstantial  evidence,  the 
credibility  of  the  testimony  as  distinguished  from  the  credibility  of 
the /aci  is  assumed,  since  it  is  a  quality  essential  to  the  value  of 
circumstantial  in  common  with  all  moral  evidence. 

Our  faith  in  moral  evidence  is  grounded,  as  we  have  seen,  upon 
our  confidence  in  the  permanency  of  the  order  of  nature,  and  in  the 
reahty  and  fidelity  of  the  impressions  received  by  means  of  the 
senses,  which  place  us  in  connexion  with  the  external  world  and  with 
other  men ;  and  upon  the  laws  of  our  moral  and  intellectual  being, 
the  immutability  of  moral  distinctions,  and  the  authority  of  con- 
science ;*  so  that  if  we  could  correctly  estimate  and  were  able  to 
eliminate  the  various  disturbing  influences  which  tend  to  divert  men 
from  the  path  of  truth  and  rectitude,  our  reasonings  and  conclusions 
would  possess  all  the  force  of  demonstration. 

The  silent  workings,  and  still  more  the  fearful  explosions,  of  hu- 
man passion  which  bring  to  light  the  darker  elements  of 
[  '210  ]  *man's  nature,  must  ever  present  to  the  philosophic  ob- 
server considerations  of  deep  intrinsic  interest ;  while  to 
the  jurist,  the  moral  and  mechanical  coincidences  which  connect  dif- 
ferent facts  with  each  other,  are  relevant  and  all-important,  as  they 
are  the  intermediate  connecting  links  between  criminal  actions  and 
the  malignant  feelings  and  dispositions  in  which  they  originate. 

The  distinct  and  specific  proving  power  of  circumstantial  evidence 
as  incidentally  stated  in  a  former  part  of  this  Essay,  depends  upon 
its  incompatibility  with,  and  incapability  of  explanation  upon,  any 
other  reasonable  hypothesis,  consistent  with  the  ordinary  course 
of  nature,  than  that  of  the  truth  of  the  principal  fact  in  proof  of 
which  it  is  adduced  if  so  that,  after  the  exhaustion  of  every  other 

*  See  ante,  p.  10.  t  Supra,  p.  26. 


CIRCUMSTANTIAL   EVIDENCE.  159 

possible  and  admissible  mode  of  solution,  vre  must  either  conclude 
that  the  accused  has  been  guilty  of  the  fact  imputed,  or  renounce  as 
illusory  and  deceptive  all  the  results  of  consciousness  and  experience, 
and  all  the  operations  of  the  human  mind.* 

Conclusions  thus  formed  are  simple  inferences  of  the  understand- 
ing, aided  and  corrected  by  the  apphcation  of  those  rules  of  evidence 
and  those  processes  of  reason  which  sound  and  -well-ripened  experi- 
ence has  consecrated  as  the  best  methods  of  arriving  at  truth  ;  and 
they  constitute  that  moral  certainty  upon  which  men  securely  act 
in  all  other  great  and  important  concerns,  and  upon  which  they  may 
therefore  safely  rely  for  the  truth  and  correctness  of  their  conclu- 
sions in  regard  to  those  events  which  fall  within  the  province  of  crim- 
inal jurisprudence.  "  If,"  said  Lord  Chief  Baron  Pollock  to  the 
jury  in  a  late  case,  "  the  conclusion  to  which  you  are  conducted  be, 
that  there  is  that  degree  of  certainty  in  the  case  that  you  would  act 
upon  it  in  your  own  grave  and  important  concerns,  that  is 
the  *degree  of  certainty  which  the  law  requires,  and  which  [  *211  ] 
will  justify  you  in  returning  a  verdict  of  guilty. f" 

Many  continental  codes  prescribe  imperative  formulce  descriptive  of 
the  kind  and  amount  of  evidence  necessary  to  constitute  legal  proof. 
But  the  diversities  of  individual  men  render  it  impracticable  thus 
definitely  to  estimate  the  fleeting  shades  and  infinite  combinations  of 
human  motives  and  actions  ;  or  thus  to  fix,  with  arithmetical  exact- 
ness, a  common  standard  of  proof,  which  shall  influence  with  unvary- 
ing intensity  and  effect  the  minds  of  all  men  alike.  Such  rules  are 
not  merely  harmless,  nor  simply  superfluous  ;  they  are  positively 
pernicious  and  dangerous  to  the  cause  of  truth  ;  and  while  they  op- 
erate as  snares  for  the  conscience  of  the  judge,  they  are  unnecessary 
for  the  protection  of  the  innocent,  and  effective  only  for  the  impunity 
of  the  guilty.  $ 

The  very  few  cases  in  which  the  law  of  England  requires  a  par- 
ticular amount  of  evidence,  as  on  trials  for  high  treason  and  perjury, 
where  two  witnesses  are  required,  are  obviously  grounded  upon  dif- 
ferent principles  ;  in  the  former,  upon  motives  of  policy  and  justice, 
for  the  protection  of  persons  charged  with  political  crime  from  becom- 
ing the  victims  of  party  violence  ;  and  in  the  latter,  because  the 
mere  contradiction  by  the   oath  of  a  single  witness  is  obviously  not 

•  Mittermaier,   ut  supra,  ch.  59. 

t  Reg.  V.  Mauning  and  Wife,  C.  C.  Court,  Oct.  1849. 

X  Mittermaier,  ut  supra,  ch.  8. 


160  FORCE  AND   EFFECT  OF 

of  itself  sufficient  to  prove  that  the  party  accused  has  been  guilty  of 
wilful  falsehood. 

If  it  be  proved  that  a  party  charged  -with  crime  has  been  placed 
in  circumstances  which  commonly  operate  as  inducements  to  commit 
the  act  in  question, — that  he  has  so  far  yielded  to  the  operation  of 
those  inducements  as  to  have  manifested  the  disposition  to  commit 
the  particular  crime,— that  he  has  possessed  the  requisite  means  and 

opportunities  of  eflfecting  the  object  of  his  wishes, — that 
[  *212  ]     recently  *after  the  commission  of  the  act  he  has  become 

possessed  of  the  fruits  or  other  consequential  advantages 
of  the  crime, — if  he  be  identified  with  the  corjms  delicti  by  any  con- 
clusive mechanical  circumstances,  as  by  the  impressions  of  his  foot- 
steps, or  the  discovery  of  any  article  of  his  apparel  or  property  at 
or  near  the  scene  of  the  crime, — if  there  be  relevant  appearances  of 
suspicion,  connected  with  his  conduct,  person,  or  dress,  and  such  as 
he  might  reasonably  be  presumed  to  be  able  to  account  for,  but 
which  nevertheless  he  cannot  or  will  not  explain, — if  he  be  put  upon 
his  defence  recently  after  the  crime,  under  strong  circumstances  of 
adverse  presumption,  and  cannot  show  where  he  was  at  the  time  of 
its  commission, — if  he  attempt  to  evade  the  force  of  those  circum- 
stances of  presumption  by  false  or  incredible  pretences,  or  by  endeav- 
ours to  evade  or  pervert  the  course  of  justice  by  conduct  inconsistent 
with  the  supposition  of  his  innocence, — the  concurrence  of  all  or  of 
many  of  these  cogent  circumstances,  unopposed  by  facts  leading  to 
a  counter  presumption,  naturally,  reasonably  and  satisfactorily  estab- 
lishes the  moral  certainty  of  his  guilt, — if  not  with  precisely  the 
same  kind  of  assurance  as  if  he  had  been  seen  to  commit  the  deed, 
at  least  with  all  the  assurance  which  the  nature  of  the  case  and  the 
vast  majority  of  human  actions  admit.  In  such  ch'cumstances  we 
are  justly  warranted  in  adopting,  without  qualification  or  reserve, 
the  conclusions  to  which,  "  by  a  broad,  general  and  comprehensive 
view  of  the  facts,  and  not  relying  upon  minute  circumstances  with 
respect  to  which  there  may  be  some  source  of  error,*"  the  mind  is 
thus  naturally  and  inevitably  conducted,  and  in  regarding  the  appli- 
cation of  the  sanctions  of  penal  law  as  a  mere  corollary.  Nor  can 
any  practice  be  more  absurd  and  unjust,  than  that  perpetuated  in 

some  modern  codes,  which,  while  they  admit  of  proof  by 
[  *213  ]     *circumstantial   evidence,  inconsistently  denies  to  it  its 

logical  and  ordinary  consequences.     Thus  the  penal  code 

*  Per  Lord  C.  B.  Pollock  in  Reg  v.  Manning  and  wife,  ut  supra. 


CIRCUMSTANTIAL  EVIDENCE.  161 

of  Austria*  prohibits  the  appUcation  of  capital  punishment  to  the 
crime  of  murder,  "  ou  I'inculpe  n'est  convaincu  que  par  le  concours 
des  circonstances  ;"  but  nevertheless  the  party  may  be  sentenced  to 
an  imprisonment  of  twenty  years ;  and  the  same  practice  prevails  in 
many  other  states,  though  with  considerable  diversity  as  to  the  maxi- 
mum amount  of  penalty.f  How  wise  and  just  the  emphatic  con- 
demnatory language  of  the  French  Papinian  :  "  Et  preterea  ut  Veri- 
tas ita  probatio  soindi  non  potest :  quae  non  est  plena  Veritas  est  plena 
falsitas,  non  semiveritas  sic  quae  non  est  plena  probatio,  plane  nulla 
probatio  est.J" 


SECTION     9. 


CONSIDERATIONS    WHICH   AUGMENT   THE   FORCE    OF    CIRCUMSTANTIAL 
EVIDENCE   IN   PARTICULAR   CASES. 

Such  are  the  considerations  which  constitute  the  force  and  eifecfc 
of  circumstantial  evidence  in  general;  but  there  are  some  collat- 
eral considerations  which  augment  the  force  of  circumstantial  evi- 
dence in  particular  cases,  and  greatly  increase  the  strength  and  se- 
curity of  our  convicrions,  upon  which  it  will  be  expedient  to  dilate. 

1.)  The  principal  of  these  auxiliary  considerations  arises  from  tbe 
concurrence  of  many  or  of  several  separate  and  independent  circum- 
stances pointing  to  the  same  conclusion,  especially  if  they  be  deposed 
to  by  unconnected  witnesses.  In.  proportion  to  the  number  of  cogent 
circumstances,  each  separately  bearing  a  strict  relation  to  the  same 
inference,  the  stronger  their  united  force  becomes,  and  the  more  se- 
cure becomes  our  conviction  of  the  moral  certainty  of  the 
*fact  they  are  alleged  to  prove  ;  as  the  intensity  of  light  [  *21-1  ] 
is  increased  by  the  concentration  of  'a,  number  of  rays  to 
a  common  focus.  It  is  forcibly  remarked  by  a  learned  writer,  that 
"  the  more  numerous  are  the  particular  analogies,  the  greater  is  the 
force  of  the  general  analogy  resulting  from  the  fuller  induction  of 
facts,  not  only  from  the  mere  accession  of  particulars,  but  from  the 
additional  strength  which  each  particular  derives  by  being  surveyed 
jointly  with  other  particulars,   as  one  among  the  correlative  parts  of 

*  Premibre  Partie,  Art.  430. 

t  See  note,  ante,  p.  24,  and  Mittermaier,  ut  supra,  ch.  61. 

t  Cujas,  Cod.  t.  de  Leg.,  and  see  Gabriel,  ut  supra,  67. 

23 


162  CONSIDERATIONS   AVHICH  AUGMENT 

a  system.*"  Although  neither  the  combined  effect  of  the  evidence, 
nor  any  of  its  constituent  elements,  admits  of  numerical  computa- 
tion, it  is  indubitable,  that  the  proving  power  increases  with  the  num- 
ber of  the  independent  circumstances  and  witnessess,  according  to  a 
geometrical  progression.  "  Sucli  evidence,"  in  the  words  of  Dr. 
Held,  " may  be  compaied  lO  a  rope  made  up  of  many  slender  iila- 
ments  tAvisteJ  together.  The  rope  hrs  strength  more  than  sufficieat 
to  bear  the  stress  laid  upon  it,  though  no  one  of  the  filamerus  of 
which  it  is  composed  would  be  sufficient  fov  that  purpose.-)-" 

The  increase  of  force  produced  by  the  concurrence  of  independent 
eircumstances^  is  analogous  to  diat  which  is  the  result  of  the  concur- 
rence of  several  independent  wit7iesses  in  relating  the  same  fact ; 
and  if  these  elements  admit  of  numeriual  evaluation,  their  combined 
eflfect  may  be  represented  by  a  fi-action,  which  has  for  lis  numerator 
the  product  of  the  chances  favourable  to  the  testimony  of  each  witness, 
and  for  its  denominator,  the  sum  of  all  the  chances,  favourable  and 
unfavourable,  tlie  unfavourable  chances  being  uie  produci  o'C  the  sev- 
eral deficiencies  of  the  witnesses.  Bue  if  ihe  witnesses  lO  the  fact 
be  dependent  on  each  other,  so  thai  the  testimony  of  the  second  de- 
pends for  its  truth  upon  the  first,  that  of  the  ihird  upon 
[  ■■■215  ]  the  *second  and  so  on,  then  the  effect  of  the  evidence 
diminishes  with  every  increase  in  the  numbei  oi  the  vdt- 
nesses  or  the  facts,  just  as  an  increase  in  the  denominate ••  of  a  frac- 
tion reduces  it  to  one  of  an  inferior  value.* 

A  learned  writer  has  illustrated  the  subject  by  a  case  whicli  at 
first  sight  seems  an  extreme  one,  and  it  has  occasionally  been  press- 
ed in  argument  with  much  force§.  '•  Let  it  be  supposed."  says  he, 
"  that  A.  is  robbed,  and  that  the  contents  of  his  purse  were  one 
penny,  two  sLxpences,  three  shilHngs,  four  half-crowns,  five  crowns, 
six  half-sovereigns,  and  seven  sovereigns,  and  that  a  person  appre- 
hended in  the  same  fair  or  market  where  the  robbery  takes  place  is 
found  in  possession  of  the  same  remarkable  combination  of  coin  and 
of  no  other,  but  that  no  part  of  the  coin  can  be  identified ;  and  that 
no  circumstances  operate  against  the  prisoner  except  his  possession 
of  the  same  combination  of  coin :  here,  notwithstanding  the  very 
extraordinary  coincidence  as  to  the  number  of  each  individual  kmd 

*  Hampden's  Essay,  ul  supra,  p.  63. 
t  Essay  on  the  Intell.  Pow.  chap.  iii. 

t  Kirwan's  Logic,  vol.ii.  ch.  vii.    Hartley's  Ohs.  ch.  iii.  s.  2.  prop.  Ixxx. 
§  Trial  of  the  Rev.  Ephraim  Arery,   charged   with   the  murder  of  Sarah  Maria 
Cornell,  before  the  Supreme  Court  of  Rhode  Island,  May,  1833.  (Boston.) 


FORCE  OF  CIRCUMSTANTIAL  EVIDENCE.  163 

of  coin,  although  ihe  circumstances  raise  a  liigli  probability  of  iden- 
uty,  yet  it  stil'  is  one  of  a  definite  and  inconclusive  nature*."  The 
probability  that  the  coins  lost  avid  those  discovered  are  the  same  is 
so  greai,  that  perhaps  the  firsi  impulse  of  every  person  ujiaccustom- 
ed  to  this  kind  of  ie?.soning  is  unhesitatingly  lO  conclude  that  they 
certoinly  are  so  ;  yet,  nevertbeless,  the  case  is  one  of  probabihty 
only,  the  degree  o"  whicii  's  capable  of  exact  calculation  :  but  if 
that  degree  of  probability,  bigh  as  it  is,  were  sufficient  to  warrant 
conviction  in  the  pavticular  case,  it  would  be  impossible  co  draw  the 
distinction  betv.een  the  degree  of  probability  Avhich  would 
p.nd  that  Vv-hich  would  *noi  justify  the  infliction  of  penal  [  *21G  ] 
retribution  in  other  cases  o"  interior  probability.  In  ihc 
case  of  a  small  number  of  coins,  two  or  three  for  instance,  the  pro- 
bability of  thei)'  identity  would  be  very  v/eak ;  and  yet  the  two 
cnses,  though  different  in  degree,  are  in  principle  the  same ;  and  the 
chance  of  identity  is  in  both  cases  equally  capable  of  precise  deter- 
mination. Tlie  learned  writer  adds,  tliat,  '•  although  the  fact  taken 
nakedly  and  alone,  without  any  collateral  evidence,  would  in  princi- 
ple be  inconclusive,  yet,  if  coupled  with  circumstances  of  a  conclu- 
sive tendency,  such  as  flight,  concealment  of  the  money,  false  and 
fabricated  statements  as  to  the  possession,  it  might  afford  strong  and 
pregnant  evidence  of  guilt  for  the  consideration  of  the  jury."  In 
like  manner  it  would  be  difficult  to  resist  the  inference  of  the  iden- 
tity of  the  coins,  if  in  the  case  supposed  they  were  scarce  or  foreign 
ones. 

From  the  number  of  qualifying  considerations  connected  with 
facts  which  are  the  subjects  of  testimonial  evidence,  and  the  imprac- 
ticability of  forming  an  exact  numerical  estimate  of  the  veracity  of 
witnesses,  the  cases  to  which  this  kind  of  reasoning  is  applicable,  if 
there  be  any  such,  must  be  very  rare.  It  is  manifest,  that  every 
combination  of  moral  incidents  and  contingent  probabilities  must 
give  a  product  of  the  same  nature,  and  affected  by  the  same  sources 
of  error  and  uncertainty,  as  affect  its  separate  elements;  and  in  all 
judgments  grounded  upon  circumstantial  evidence,  this  fundamental 
difference  between  moral  and  mathematical  certainty  must  be  borne 
in  mind.  "  It  were  absurd,"  declares  an  eminent  philosopher,  "  to 
say  that  the  sentiment  of  belief  produced  by  any  probability  is  pro- 
portioned to  the  fraction  which  expresses  that  probabihty ;  but  it  is 
so  related  to  it,  or  ought  to  be  so,  as  to  increase  when  it  increases, 

♦  Starkie's  L.  of  Ev.  i.  506. 


164  CONSIDERATIONS   WHICH   AUGMENT  THE 

and  to  diminish  when  it  diminishes*."  It  is  manifest, 
[  *217  ]     however,  that  the  consequence  *of  the  concurrence  of  a 

plurality  of  witnesses,  and  the  conjunction  of  separate 
circumstances,  is  to  add  immensely  to  the  force  of  each ;  and  if  the 
credit  of  the  witnesses  be  unimpeachable,  and  the  hypotheses  of  con- 
federacy and  error  be  excluded,  then  no  other  conclusion  can  be  ra- 
tionally adopted,  than  that  the  facts  to  which  they  depose  are  true. 
The  case  suggested  is  that  of  circumstantial  evidence  in  its  most  co- 
gent form  ;  and  in  such  case,  the  conclusion  to  which  its  various 
elements  converge  must  be  regarded  as  morally  irresistible. 

2.)  Independently  of  the  direct  effect  of  that  probability  which 
results  from  a  concurrence  of  independent  witnesses  or  circumstan- 
ces, the  security  of  our  judgments  is  further  increased  from  the  con- 
siderations, that  in  proportion  to  the  number  of  such  witnesses  or 
circumstances  confederacy  is  rendered  more  difficult,  and  that  in- 
creased opportunities  and  facilities  are  afforded  of  contradicting 
some  or  all  of  the  alleged  facts  if  they  be  not  true.  To  preserve 
consistency  in  a  work  even  professedly  of  fiction,  where  all  the  wri- 
ter's art  and  attention  are  perpetually  exerted  to  avoid  the  smallest 
appearance  of  discrepancy,  is  an  undertaking  of  no  common  difficul- 
ty ;  and  it  is  obvious  that  the  difficulty  must  be  incomparably  greater 
of  preserving  coherency  and  order  in  a  fabricated  case  which  must 
be  supported  by  ihe  confederacy  of  several  persons,  where,  since  by 
the  hypothesis  the  congruity  results  from  artifice,  the  slightest  vari- 
ation in  any  of  the  minute  circumstances  of  the  transaction  or  of  its 
concomitants  may  lead  to  detection  and  exposure.  On  the  other 
hand,  though  if  the  main  features  of  the  case  do  not  satisfactorily 
establish  guilt,  it  is  not  safe  to  rely  upon  very  minute  circumstancesf, 
yet,  if  the  statemenfs  of  the  witnesses  are  based  upon  realities,  the 

more  rigorously  they  are  sifted  the  more  satisfactory  will 
[  *218  ]     be  the  general  result,  from  the  development  of  minute,  *in- 

direct,  and  -unexpected  coincidences  in  the  attendant  mi- 
nor particulars  of  the  main  event.  It  was  happily  remarked  by  Dr. 
Paley,  that  "  the  undesignedness  of  the  agreements  (which  unde- 
signedness  is  gathered  from  their  latency,  their  minuteness,  their  ob- 
liquity, the  suitableness  of  the  circumstances  in  which  they  consist, 
to  the  places  in  which  those  circumstances  occur,  and  the  circuitous 
references   by  which  they  are  traced  out)   demonstrates  that  they 

*  Playfair's  Works,  iv.  437. 

t  Per  Mr.  Barou  Rolfe,  in  Reg.  v.  Rush,  Norfolk  Sp.  Ass.  1849. 


PORCE    OF    CIRCUMSTANTIAL    EVIDENCE.  165 

have  not  been  produced  bj  meditation  or  by  any  fraudulent  contri- 
vance. But  coincidences  from  ^Yhich  these  causes  are  excluded,  and 
which  are  too  numerous  and  close  to  be  accounted  for  by  accidental 
concurrences  of  fiction,  must  necessarily  have  truth  for  their  founda- 
tion*." The  same  learned  writer  also  justly  remarks,  that  "  no  ad- 
vertency is  sufficient  to  guard  aguinst  slips  and  contradictions  when 
circumstances  are  multipliedf."  Hence  it  is  observed  in  courts  of 
justice,  that  witnesses  who  come  to  tell  a  concerted  story  are  always 
reluctant  to  enter  into  particulars,  and  perpetually  resort  to  shifts 
and  evasions  to  gain  time  for  deliberation  and  arrangement,  before 
they  reply  directly  to  a  course  of  examination  likely  to  bring  dis- 
credit upon  their  testimony. 

It  must  nevertheless  be  admitted  that  history  and  experience  sup- 
ply abundant  evidence  that  it  would  be  most  erroneous  in  the  ab- 
stract to  decide  a  matter  of  fact  by  numbers,  and  that  there  have 
been  extraordinary  cases  of  false  charges,  most  artfull}^  and  plausi- 
bly supported  by  connected  trains  of  feigned  circumstaucesj. 

*But  considering  tlie  circumstances  of  the  class  of  per-  [  *219  ] 
sons  most  frequently  subjected  to  accusation  for  alleged 
crime, — deprived  of  personal  freedom,  often  friendless,  and  still 
more  frequently  destitute  of  pecuniary  resources  and  professional 
aid, — their  imperfect  means  of  knowing  all  the  lacts  proposed  to  be 
proved,  or  the  manner  in  which  they  are  attempted  to  be  connected, 
— the  alleged  facility  of  disproof  is  often  more  imaginary  than  real. 
Lord  Eldon  thus  forcibly  expressed  himself  on  this  question :  "  I 
have  frequently  thought,"  said  his  Lordship,  "  that  more  effect  has 
been  given,  than  ought  to  have  been  given,  in  what  is  called  the  sum- 
ming up  of  a  judge  on  a  trial,  to  the  fact,  that  there  has  not  been  the 
contradiction  on  the  part  of  the  defence,  which  it  is  supposed  the  wit- 
nesses for  the   accusation  might  have  received It  may  often 

happen  that,  in  the  ccurse  of  a  trial,  circumstances  are  proved  which 
have  no  bearing  on  the  real  question  at  issue  ;  and  it  may  also  hap- 
pen, that  facts  are  alleged  and  sworn  to  by  witnesses,  which  it  is  im- 
possible for  the  accused  party  to  contradict  ;  circumstances  may  be 

*  Paley's  Evid.  part  ii.  ch.  vii.  Whately's  Rliet.  part  i.  ch.  ii.  s.  4.  Greeoleaf's 
Ex.  ut  supra,  p.  39. 

t  Horse  Paulinoe,  chap.  i. 

J  See  Rex  r.  Squires  and  Wells;  19Sl.  Tr.  275;  the  prosecutrix  in  which  case 
■waB  afterwards  convicted  of  perjury  :  Rex  v.  Bowditch  and  others,  Dorchester  Sum- 
mer Assizes,  1818,  coram  Mr  Justice  Park  ;  short-hand  report  by  Richardson,  where 
prosecutrix  was  also  subsequently  convicted  of  perjury ;  and  Report  of  the  proceed- 
ings in  an  action,  Mary  Smith  v.  Lord  Ferrers,  printed  by  Pickering,  184G. 


166  CONSIDERATIONS   WHICH   AUGMENT   THE 

stated  by  vntnesses  which  are  untrue  ;  yet  they  may  not  be  contra- 
dicted, because  ihe  party  injured  by  them,  lot  expecting  that  that 
which  never  had  any  existence  would  be  Attempted  to  be  proved, 
cannot  be  prepared  with  opposing  ^vilnesses.  So  also,  iu  cases  in 
which  an  individual  witness  speaks  to  occurrences,  afcvv-hich  no  other 
person  was  piesent  but  himselt',  there  ii,  may.be  absolutely  impossible 
to  contradict  him*." 

Many  of  the  disadvantages  under  which  prisoners  on  trial  are  ne- 
cessarily placed  have  been  removed  oi'  diminished  by  the  provisions 

of  Stat.  6  and  7  Will.  IV.,  c.  144.  ss.  3  and  4,  which 
[  *220  ]     give  to  persons  held  to  bail  or  committed  *to  prison  a 

light  to  require  copies  of  the  examination  of  the  witnesses 
upon  whose  evidence  they  have  been  held  to  bail  or  committed,  on 
payment  of  a  moderate  charge,  and  at  the  time  of  trial  to  inspect 
the  depositions  returned  into  Court.  The  argument  founded  on  the 
means  aflforded  of  disproof  may  consequently  now  be  urged,  at  least 
in  most  cases,  with  more  justice  and  effect  than  formerly,  though  even 
still  a  party  charged  wiih  crime  has  no  means  of  knowing  any  facts 
which  may  not  liave  been  brought  forward  prior  to  his  commitment, 
or  v.hich  may  have  been  discovered  in  the  interval  before  trial ;  nor 
does  the  enactment  extend  to  cases  of  commitment  by  the  coronerf, 
or  of  indictment  found  without  previous  commitment.  There  are 
moreover  many  cases  vrhich  do  not  afford  the  alleged  facility  of  dis- 
proof in  any  degree  ;  where,  even  admitting  the  truth  of  the  testimo- 
ny, the  supposed  presumption  of  guilt  is  nothing  more  than  a  mis- 
taken conclusion  from  facts  which  aflford  no  warrant  for  the  infer- 
ence of  guilt ;  in  such  circumstances  to  attempt  disproof  is  to  at- 
tempt to  grapple  with  a  shadow, — to  require  it,  to  exact  an  impossi- 
bility4 

3.)  The  preceding  considerations  imply  the  necessity  of  consisten- 
cy and  general  harmony  in  the  testimony  of  different  witnesses.  All 
human  events  must  necessarily  form  a  coherent  whole ;  and  actual 
occurrences  can  never  be  mutually  inconsistent.  If  one  of  two  wit- 
nesses depose  that  he  saw  an  individual  at  London,  and  the  other 
that  he  saw  him  at  York  at  or  near  the  same  precise  moment,  the 
accounts  are  absolutely  irreconcileable,  and  one  or  other  of  them 
must  by  design  or  inadvertence  be  untrue.     A  diversity  ought  al- 

*  Hansard's  Pari.  Deb.  2nd  series,  iii.  1445. 

t  Rex  V.  Greenacic,  8  C.  &  P.  32.  Reg  v.  Connor,  Cambridge  Sp.  Ass.  1845, 
coram  Mr.  Justice  Patteson,  5  L.  Times,  495. 

%  Rex  V.  Looker,  Rex  t\  Downing,  and  Rex  v,  Thornton,  ut  supra. 


■  FORCE  OF   CIFvCUMSTANTIAL  EVIDENCE.  167 

wajs  to  excite  caution  and  a  scrapulons  regard  to  the  ca- 
pacity, situation,  and  disposition  of  the  *\vitnesses,  and  es-  [  *221  ] 
pecially  to  the  possibiUty  ol'  confusion  from  some  mental 
emotion.  ''We  are  f.eqnently  mistaken,"  said  Lord  Chief  Baron 
Pollock,  "  even  as  to  what  v/e  may  susposs  we  see  ;  end  still  ofiener 
are  -we  mistaken  as  to  that  which  we  suppose  we  hca..*."  Lord 
Clarendon  relates,  that  in  the  alarm  created  by  tlie  Fire  of  London, 
so  terrified  were  men  with  their  own  apprehensions,  ihat  the  inhcibi- 
tants  of  a  whole  street  i-an  in  a  great  tnmuU  one  way,  upon  a  rumour 
that  the  French  were  marching  at  the  other  end  of  itj-.  The  same 
noble  historian  has  also  given  another  anecdote  relating  co  thui  great 
calamity,  too  instructive  as  applicable  to  this  subjeci  to  be  omitted. 
A  servant  of  the  Portuguese  ambassadoi-  v/as  seizen  by  the  populace 
and  pulled  about,  and  very  ill-used,  upon  the  accusation  of  a  substan- 
tial citizen,  who  wa^  ready  to  lake  his  oath  that  be  saA?  him  put  his 
hand  into  his  pocket,  and  throw  a  fire-ball  into  a  house,  which  imme- 
diately bnrst  into  flames.  The  foreigner,  wlio  could  not  speak  Eng- 
lish, heard  these  charges  interpreted  to  him  with  amazement.  Being 
asked,  what  it  was  that  he  pulled  out  of  his  pocket,  and  what  ic  was 
he  threv/  into  the  house,  he  answered,  that  he  did  oot  think  he  had 
put  his  Jiand  into  his  pocket,  bui  ihat  he  remembered  very  vrell  that 
as  he  walked  in  the  streei;  he  saw  a  piece  of  bread  upon  the  ground, 
which  he  took  up  and  laid  upon  a  shelf  in  the  next  house,  according 
to  the  custom  of  his  country  ;  which,  observes  a  learned  write*  4:,  is 
so  strong,  tliat  the  King  of  Portugal  himself  would  have  acted  with 
the  same  scrupulous  regard  to  general  economy.  Upon  searching 
the  house  which  was  in  view,  the  bread  was  found  just  within  the 
door  upon  a  board  as  described  ;  and  the  house  on  fire  was 
two  doors  beyond  it,  the  citizen  having  erroneously  *con-  [  *222  ] 
eluded  it  to  be  the  same  ;  "  which,"  says  Lonl  Claren- 
don, '•'  was  very  natural  in  the  fright  that  all  men  were  in§." 

Bu':  variations  in  the  relations  by  different  persons  of  the  same 
transaction  or  event,  in  respect  of  unimportant  circumstances,  are 
noc  necessarily'  to  be  regarded  <  s  indicaiive  of  fraud  or  falsehood, 
provided  there  be  substantial  agreement  in  other  respects.  True 
strength  of  mind  consists  in  not  allowing  the  judgment,  when  found- 
ed upon  convincing  evidence,  to  be  disturbed  because  ihere  are  im- 

*  In  Reg  V.  Manning  and  Wife,  ul  supra. 
t  Life,  and  Continuation,  etc.,  iii.  91,  Oxford  ed.,  1827. 
X  Woodeson's  Lect.  on  the  Laws  of  England,  iii.  Lect.  53. 
^  Clarendon's  Life  and  Continuation,  iii,  86. 


168  CONSIDERATIONS   WHICH   AUGMENT  THE 

material  discrepancies  which  cannot  be  reconciled.  When  the  vast 
inherent  diflFerences  in  individuals  with  respest  to  natural  faculties 
and  acquired  habits  of  accurate  observation,  faithful  recollection,  and 
precise  narration,  and  the  important  influence  of  intellectual  and  mor- 
al culture,  are  duly  considered,  it  will  not  be  thought  surprising  that 
entire  agreement  is  seldom  found  amongst  a  number  of  witnesses  as 
to  all  the  collateral  incidents  of  the  same  principal  event..  "  I  know 
not,"  says  Paley,  "  a  more  rash  or  unphilosophical  conduct  of  the 
understanding  than  to  reject  the  substance  of  a  story  by  reason  of 
some  diversity  in  the  circumstances  ^\ith  which  it  is  related.  The 
usual  charactei"  of  human  testimony  is  substantial  truth  under  circum- 
stantial variety.  That  is  what  the  daily  experience  of  courts  of  jus- 
tice teaches.  When  accounts  of  a  transaction  come  from  the  mouths 
of  diiferent  witness,  it  is  seldom  that  it  is  not  possible  to  pick  out  ap- 
parent or  real  inconsistencies  between  them.  These  circumstan- 
ces are  studiously  displayed  by  an  adverse  pleader,  but  oftentimes 
with  little  impression  upon  the  minds  of  the  judges.  On  the  contra- 
ry, a  close  and  minute  agreement  induces  the  suspicion  of  confedera- 
cy and  fraud*. 
Instances  of  discrepancy  as  to  the  minor  attendant  circumstances 

of  historical  events  are  numberless.     Lord  Clarendon  re- 
[  *223  ]     lates  *that  the  Marquis  of  Argyle  was  condemned  to  be 

hanged^  and  that  the  sentence  was  performed  the  same 
day.  Burnet,  Woodrow,  and  Echard,  writers  of  good  .authority, 
who  lived  near  the  time,  state  that  he  was  beheaded,  though  con- 
demned to  be  hanged,  and  that  his  sentence  was  pronounced  on  Sat- 
urday and  carried  into  effect  on  the  Monday  following! .  Charles 
the  second,  after  his  flight  from  Worcester,  has  been  variously  stated 
to  have  embarked  at  Brighthelmstone  and  at  New  Shoreham  J.  Clar- 
endon states  that  the  royal  standard  was  erected  about  six  o'clock 
of  the  evening  of  the  25th  of  August,  "  a  very  stormy  and  tem- 
pestuous day;"  whereas  other  contemporary  historians  variously 
state  that  it  was  erected  on  the  22nd  and  24th  of  that  month§.  By 
some  historians  the  death  of  the  Parliamentary  leader  Pym,  is  stated 
to  have  taken  place  in  the  month  of  May  1643||  ;  while  by  others  it 

*  Puley's  Ev.  part  iii.  cap.  1. 

t  Comp.  Life  and  Continuation,  ii.  266,  and  Paley's  Ev.  part  iii.  ch.  1, 

X  Hist,  of  the  Reb.  vi.  p.  541.     Lingard's  Hist,  of  Eng,  vol.  xi.  c.  1. 

§  Hist,  of  the  Reb.  iii.  190,  Rushworth's  Coll.  i.  part  3  p.  783.  Mem.  of  Ludlow, 
p.  15. 

II  Whitelock's  Mememorials,  p.  66.  Baker's  Chron.  p.  570.  b.  Hist,  of  the  Reb. 
iv.  436.    Hume's  Hist.  vi.  540,  ed.  1818.     Goodwin's  Hist,  of  the  Comm.  i.  IT. 


FORCE   OF   CIRCUMSTANTIAL  EVIDENCE.  169 

is  said  to  have  occurred  in  the  following  year.  To  come  nearer  to 
our  own  times,  the  author  of  a  celebrated  biographical  memoir  re- 
lates, that  after  the  rebellion  of  1745  three  lords  were  executed  at 
Tower-hill ;  whereas  it  is  well  known  that  tioo  only  underwent  that 
doom,  the  third,  Lord  Nithsdale,  having  effected  his  escape  the  night 
before  his  intended  execution.*  Such  discrepancies  never  excite  a 
serious  doubt  of  the  truth  of  the  principal  facts  with  which  they  are 
connected ;  unless  they  can  be  traced  to  the  operation  of  prejudice 
or  some  other  sinister  motive. f  It  has  been  most  happily 
remarked,  *that  "  the  last  thing  a  man  would  think  of  [  *22-4  ] 
doing,  in  such  cases,  would  be  to  neglect  the  preponderant 
evidence,  on  account  of  the  residuum  of  insoluble  objections ;"  that 
"  he  does  not,  in  short,  allow  his  ignorance  to  control  his  knowledge, 
nor  the  evidence  which  he  has  not  got,  to  destroy  what  he  has."| 

Still  less  are  mere  omissions  to  be  considered  as  necessarily  cast- 
ing discredit  upon  testimony  which  stands  in  other  respects  unim- 
peached  and  unsuspected.  Omissions  are  generally  capable  of  ex- 
planation by  the  consideration  that  the  mind  may  be  so  deeply  im- 
pressed with,  and  the  attention  so  rivetted  to,  a  particular  fact,  as 
to  withdraw  attention  from  concomitant  circumstances.  It  has  been 
justly  remarked,  that  a  fact  may  have  taken  place  in  the  very  sight 
of  a  person  who  may  not  have  observed  it ;  and  if  he  did  observe  it, 
may  have  forgotten  it.  §  Upon  general  principles  therefore  negative 
evidence  is  regarded  as  of  little  or  no  weight  when  opposed  to  the 
positive  affirmative  evidence  of  persons  of  unimpeachable  credit. 
Sometimes  however  the  non-relation  of  particular  facts  amounts  to 
the  suppressio  veri,  which  in  point  of  moral  guilt  may  be  equal  to 
positive  mendacity,  and  destructive  of  all  claim  to  testimonial  credit.  (| 

•  Coxe's  Mem.  of  Walpole,  i.  73. 

t  See  in  Clarendon's  Hist.  (iv.  436.  )"a  remarkable  instance  of  historical  dishonesty. 
He  states  that  Pym  died  of  a  loathsome  disease,  morbus  pendiculosus,  evidently  with 
the  design  of  propagating  the  notion  that  it  fwas  "  a  mark  of  divine  rengeance" 
(Hume's  Hist.  vii.  540.)  ;  whereas  he  must  have  known  that  Pym's  corpse  was  ex- 
posed to  public  view  for  several  days  before  it  was  interred,  in  confutation  of  this  cal- 
umnious statement.     (Ludlow's  Mem.  p.  31.) 

t  Ed.  Rev.  vol.  xc.  p.  310. 

§  Sir  Herbert  Jenner,  in  Chambers  v.  the  Queen's  Proctor,  2  Cart.  415. 

II  Grafton,  who  was  printer' to  Queen  Elizabeth,  in  his  chronicles  published  in  1562, 
in  writing  the  history  of  King  John,  has  made  no  mention  of  Magna  Charta  ;  per- 
haps he  considered  that  his  silence  might  be  deemed  complimentary  to  that  arbitrary 
prmcess.    Ed.  Rev.  liii.6. 

24 


170  ILLUSTRATIONS  OF  THE  FORCE   OF 

[  *225  3  *SECTIOW8. 

CASES  IN   ILLUSTRATION   OF   THE  FORCE   OF   CIRCUMSTANTIAL 
EVIDENCE. 

Many  remarkable  cases  of  this  nature  have  been  given  in  the 
preceding  pages,  in  application  to  the  exemplification  of  some  specific 
doctrine  or  object ;  to  these  will  now  be  added,  as  an  appropriate 
commentary  upon  this  discussion  of  the  scientific  principles  which 
govern  the  reception  and  estimate  of  circumstantial  evidence,  some 
of  the  most  curious  and  instructive  examples  of  the  force  of  a  cumu- 
lation of  moral  and  mechanical  facts  which  have  ever  occurred  in  the 
annals  of  criminal  jurisprudence. 

1.)  In  the  autumn  of  1786  a  young  woman,  who  lived  with  her 
parents  in  a  remote  district  in  the  stewartry  of  Kirkcudbright,  was 
one  day  left  alone  in  the  cottage,  her  parents  having  gone  out  to  the 
harvest  field.  On  their  return  home  a  little  after  mid-day  they 
found  their  daughter  murdered,  with  her  throat  cut  in  a  most  shock- 
ing manner.  The  circumstances  in  which  she  was  found,  the  char- 
acter of  the  deceased,  and  the  appearance  of  the  wound,  all  concur- 
red in  excluding  any  presumption  of  suicide ;  while  the  surgeons 
who  examined  the  wound  were  satisfied  that  it  had  been  inflicted  by 
a  sharp  instrument,  and  by  a  person  who  must  have  held  the  instru- 
ment in  his  left  hand.  Upon  opening  the  body  the  deceased  ap- 
peared to  have  been  some  months  gone  with  child  ;  and  on  examin- 
ing the  ground  about  the  cottage,  there  were  discovered  the  foot- 
steps of  a  person  who  had  seemingly  been  running  hastily  from  the 
cottage,  by  an  indirect  road  through  a  quagmire  or  bog  in  which 
there  were  stepping-stones.  It  appeared,  however,  that  the  person 
in  his  haste  and  confusion  had  slipped  his  foot  and  stepped  into  the 
mire,  by  which  he  must  have  been  wet  nearly  to  the  middle  of  the 
leg.  The  prints  of  the  footsteps  were  accurately  meas- 
[  *226  ]  ured,  and  an  *exact  impression  taken  of  them  ;  and  it 
appeared  that  they  were  those  of  a  person  who  must  have 
worn  shoes  the  soles  of  which  had  been  newly  mended,  and  which, 
as  is  usual  in  that  part  of  the  countjy,  had  iron  knobs  or  nails  in 
them.  There  were  discovered  also  along  the  track  of  the  footsteps, 
and  at  certain  intervals,  drops  of  blood  ;  and  on  a  stile  or  small 
gateway  near  the  cottage,  and  in  the  line  of  the  footsteps,  some 
marks  resembling  those  of  a  hand  that  had  been  bloody.  Not  the 
slightest  suspscion  at  this  time  attached  to  any  particular  person  as 


CIRCUMSTANTIAL  EVIDENCE.  171 

the  murderer,  nor  was  it  even  suspected  who  might  be  the  father  of 
the  child  of  which  the  girl  was  pregnant.  At  the  funeral  a  number 
of  persons  of  both  sexes  attended,  and  the  stewart-depute  thought 
it  the  fittest  opportunity  of  endeavoring  if  possible  to  discover  the 
murderer  ;  conceiving  rightly  that  to  avoid  suspicion  whoever  he  was, 
be  would  not  on  that  occasion  be  absent.  "With  this  view  he  called  to- 
gether after  the  interment  the  whole  of  the  men  who  were  present, 
being  about  sixty  in  number,  lie  caused  the  shoes  of  each  of  them  to 
be  taken  off  and  measured  ;  and  one  of  the  shoes  was  found  to  resemble, 
pretty  nearly,  the  impression  of  the  footsteps  near  to  the  cottage.  The 
wearer  of  the  shoe  was  the  schoolmaster  of  the  parish  ;  which  led  to 
a  suspicion  that  he  must  have  been  the  father  of  the  child,  and  had 
been  guilty  of  the  murder  to  save  his  character.  On  a  closer  exam- 
ination however  of  the  shoe,  it  was  discovered  that  it  was  pointed  at 
the  toe,  whereas  the  impression  of  the  footstep  was  round  at  that 
place.  The  measurement  of  the  rest  went  on,  and  after  going  through 
nearly  the  whole  number,  one  at  length  was  discovered  which  corres- 
ponded exactly  with  the  impression  in  dimensions,  shape  of  the  foot, 
form  of  the  sole,  and  the  number  and  position  of  the  nails.  "Wil- 
liam Richardson,  the  young  man  to  whom  the  shoe  belonged,  on 
being  asked  where  he  was  on  the  day  the  deceased  was 
murdered,  replied,  seemingly  *without  embarrassment,  [  *227  ] 
that  he  had  been  all  that  day  employed  at  his  mas- 
ter's work,  a  statement  which  his  master  and  fellow-servants,  who 
w^ere  present,  confirmed.  This  going  so  far  to  remove  suspicion,  a 
warrant  of  commitment  was  not  then  granted;  but  some  circum- 
stances occurring  a  few  days  afterwards,  having  a  tendency  to  excite 
it  anew,  the  young  man  was  apprehended  and  lodged  in  jail.  Upon 
bis  examination  he  acknowledged  that  he  was  left-hmided ;  and  some 
scratches  being  observed  on  his  cheek,  he  said  he  had  got  them  when 
pulling  nuts  in  a  wood  a  few  days  before.  He  still  adhered  to  what 
he  had  said  of  his  having  been  on  the  day  of  the  murder  employed 
constantly  at  his  master's  work,  at  some  distance  from  the  place 
where  the  deceased  resided ;  but  in  the  course  of  the  inquiry  it 
turned  out,  that  he  had  been  absent  from  his  work  about  half  an 
hour  (the  time  being  distinctly  ascertained)  in  the  course  of  the 
forenoon  of  that  day  ;  that  he  called  at  a  smith's  shop,  under  pre- 
tence of  wanting  something,  which  it  did  not  appear  he  had  any  oc- 
casion for ;  and  that  this  smith's  shop  was  in  the  way  to  the  cot- 
tage of  the  deceased.  A  young  girl,  who  was  some  hundred  yards 
from  the  cottage,  said  that  about  the  time  the  murder  was  commit- 


172  ILLUSTRATIONS  OF  THE  FORCE  OF 

ted  (and  which  corresponded  to  the  time  that  Richardson  was  absent 
from  his  fellow-servants)  she  saw  a  person  exactly  with  his  dress  and 
appearance  running  hastily  toward  the  cottage,  but  did  not  see  him 
return,  though  he  might  have  gone  round  by  a  small  eminence  which 
would  intercept  him  from  her  view,  and  which  was  the  very  track 
where  the  footsteps  had  been  traced.  His  fellow-servants  now  recol- 
lected that  on  the  forenoon  of  that  day  they  Avere  employed  with 
Richardson  in  driving  their  master's  carts ;  and  that  when  passing  by 
a  wood,  which  they  named,  he  said  that  he  must  run  to  the  smith's  shop, 
and  would  be  back  in  a  short  time.     He  then  lefc  the  cart  under  their 

charge  ;  and  having  waited  for  him  about  half  an  hour, 
[  *228  ]     *which  one  of  the  servants  ascertained  by  having  at  the 

time  looked  at  his  watch,  they  remarked  on  his  return 
that  he  had  been  longer  absent  than  he  said  he  would  be,  to  which 
he  replied  that  he  had  stopped  in  the  wood  to  gather  some  nuts. 
They  observed  at  this  time  one  of  his  stockings  wet  and  soiled,  as  if 
he  had  stepped  into  a  puddle  ;  on  which  they  asked  where  he  had 
been.  He  said  he  had  stepped  into  a  marsh,  the  name  of  which  he 
mentioned  ;  on  which  his  fellow-servants  remarked  that  he  must  have 
been  either  mad  or  drunk  if  he  had  stepped  into  that  marsh,  as  there 
was  a  footpath  which  went  along  the  side  of  it."  It  then  appeared, 
by  comparing  the  time  he  was  absent  with  the  distance  of  the  cottage 
from  the  place  where  he  had  left  his  fellow-servants,  that  he  might 
have  gone  there,  committed  the  murder,  and  returned  to  them.  A 
search  was  then  made  for  the  stockings  he  had  worn  that  day.  They 
were  found  concealed  in  the  thatch  of  the  apartment  where  he  slept, 
and  appeared  to  be  much  soiled,  and  to  have  some  drops  of  blood  on 
them.  The  last  he  accounted  for  by  saying,  first,  that  his  nose  had 
been  bleeding  some  days  before  ;  but  it  being  observed  that  he  had 
worn  other  stockings  on  that  day,  he  said  he  had  assisted  in  bleeding 
a  horse  ;  but  it  was  proved  that  he  had  not  assisted,  and  had  stood 
at  such  a  distance  that  the  blood  could  not  have  reached  him.  On 
examining  the  mud  or  sand  upon  the  stockings,  it  appeared  to  cor- 
respond precisely  with  that  of  the  mire  or  puddle  adjoining  to  the 
cottage,  and  which  was  of  a  very  particular  kind,  none  other  of  the 
same  kind  being  found  in  that  neighbourhood.  The  shoemaker  was 
then  discovered  who  had  mended  his  shoes  a  short  time  before,  and 
he  spoke  distinctly  to  the  shoes  of  the  prisoner,  which  were  exhibited 
to  him,  as  having  been  those  he  had  mended.  It  then  came  out  that 
Richardson  had  been  acquainted  with  the  deceased,  who  was  consi- 


CIRCUMSTANTIAL   EVIDENCE.  173 

dered  in  the  county  as  of  weak  intellect,  and  had  on  one 
occasion  been  *seen  -with  her  in  a  wood,  in  circumstances     [  *229  ] 
that  led  to  a  suspicion  that  he  had  had  criminal  inter- 
course with  her  ;    and  on  being  taunted  with  having  such  connexion 
with  one  in  her  situation,  he  seemed  much  ashamed  and  greatly  hurt. 
It  was  proved  further,  by  the  person  who  sat  next  to  him  when  his 
shoes  were  measuring,  that  he  trembled  much,  and  seemed  a  good 
deal  agitated  ;    and  that  in  the  interval  between  that  time  and  his 
being  apprehended  he  had  been  advised  to  fly,  but  his  answer  was, 
"  Where  can  I  fly  to  ?"     On  the  other  hand,  evidence  was  brought 
to  show  that,  about  the  time  of  the  murder,  a  boat's  crew  from  Ire- 
land had  landed  on  that  part  of  the  coast,  near  to  the  dwelling  of  the 
deceased  ;  and  it  was  said  that  some  of  the  crew  might  have  com- 
mitted the  murder,  though  their  motives  for  doing  so  it  was  difficult 
to  explain,  it  not  being  alleged  that  robbery  was  their  purpose,  or 
that  anything  was  missing  from  the  cottages  in  the  neighbourhood. 
The  prisoner  was  tried  at  Dumfries,  in  the  spring  of  1787,  and  the 
jury  by  a  great  plurality  of  voices  found  him  guilty.     Before  his  ex- 
ecution he   confessed  that  he  was  the  murderer  ;   and  said  it  was  to 
hide  his  shame  that  he  had  committed  the  deed,  knowing  that  the 
girl  was  with  child  by  him.    He  mentioned  also  to  the  clergyman  who 
attended  him,  where  the  knife  would  be  found  with  which  he  had  per- 
petrated the  murder  ;    and  it  w^as  found  accordingly  in  the  place  he 
described,  under  a  stone  in  a  wall,  with  marks  of  blood  upon  it*. 

The  casual  discovery  of  circumstances  which  indicated  the  exis- 
tence of  a  powerful  motive  to  commit  the  deed, — the  facts,  that  it  had 
been  committed  by  a  left-handed  man,  as  the  prisoner 
was,  thus  narrowing  the  range  of  inquiry,  *and  that  there  [  *230  ] 
was  an  interval  of  absence  which  afforded  the  prisoner 
the  necessary  opportunify  of  committing  the  crime, — his  false  asser- 
tion that  he  had  not  been  absent  from  his  work  on  that  day,  contra- 
dicted as  it  was  by  witnesses  who  saw  him  on  the  way  to  and  in  the 
vicinity  of  the  scene  of  the  murder,  amounting  to  an  admission  of 
the  relevancy  and  weight  of  that  circumstance  if  uncontradicted, — 
the  discovery  of  his  footsteps,  near  the  spot, — his  agitation  at  the 
time  of  the  admeasurement  and  comparison  of  his  shoes  with  the  im- 
pressions,— the  discovery  of  his  secreted  stockings,  spotted  with 
blood,  and  soiled  with  mire  peculiar  to  the  vicinity  of  the  cottage, — 

*  Rex  V.  Richardson.  Burnett's  C.  L.  ut  supra,  p.  524.  This  case  is  also  concisely 
stated  in  the  Memoirs  of  the  Life  of  Sir  Wa.ter  Scott,  (vol.  iv,  p.  52.  2nd  ed.)  ;  and 
it  supplied  one  of  the  most  striking  incidents  in  Guy  Manneriag. 


174  ILLUSTRATIONS   OF  THE   FORCE   OP 

the  scratches  ou  his  face, — his  various  contradicted  statements, — all 
these  particulars  combine  to  render  this  a  most  satisfactory  case  of 
conviction,  and  to  exemplify  the  high  degree  of  assurance  -which 
circumstantial  evidence  is  capable  of  producing. 

2.)  A  man  named  Patch  had  been  received  by  Mr.  Isaac  Blight, 
a  ship-breaker,  near  Greenland  Dock,  into  his  service  in  the  year 
1803.  Mr.  Eliglit  having  become  embarrassed  in  his  circumstances 
in  July  1805,  entered  into  a  deed  of  composition  •^\-ith  his  creditors  ; 
and  in  consequence  of  the  failure  of  this  arrangement  he  made  a 
colourable  transfer  of  his  property  to  the  prisoner.  It  was  after- 
wards agreed  between  them,  that  Mr.  Blight  was  to  retire  nominally 
from  the  business,  which  the  prisoner  was  to  manage,  and  the  former 
was  to  have  two-thirds  of  the  profits,  and  the  prisoner  the  remaining 
third,  for  which  he  was  to  pay  £1250.  Of  this  amount,  .£250  was 
paid  in  cash,  and  a  draft  was  given  for  the  remainder  upon  a  person 
named  Goom,  which  would  become  payable  on  the  16th  of  Septem- 
ber ;  the  prisoner  representing  that  he  had  received  the  purchase- 
money  of  an  estate  and  lent  it  to  Goom.  On  the  16th  of  Septem- 
ber the  prisoner  represented  to  Mr.  Blight's  bankers  that  Goom  could 
not  take  up  the  bill,  andwithdiew  it,  substituting  his  own 
[  *231  ]  draft  upon  Goom,  to  fall  due  on  the  *20ih  of  September. 
On  the  19th  of  September  the  deceased  went  to  visit  his 
wife  at  Margate,  and  the  prisoner  accompanied  him  as  far  as  Dept- 
ford,  and  then  went  to  London,  and  represented  to  the  bankers  that 
Goom  would  not  be  able  to  face  his  draft,  but  that  he  had  obtained 
from  him  a  note  which  satisfied  him,  and  therefore  they  were  not  to 
present  it.  The  prisoner  boarded  in  Mr.  Blight's  house,  and  the 
only  other  inmate  was  a  female  servant,  whom  the  prisoner,  about 
eight  o'clock  on  the  same  evening  (the  19th),  sent  out  to  procure 
some  oysters  for  his  supper.  During  her  absence  a  gun  or  pistol 
ball  was  fired  through  the  shutter  of  a  parlour  fronting  the  Thames, 
where  the  family,  when  at  home,  usually  spent  their  evenings.  It 
was  low  water,  and  the  mud  was  so  deep  that  any  person  attempting 
to  escape  in  that  direction  must  have  been  suffocated  ;  and  a  man 
who  was  standing  near  the  gate  of  the  wharf,  which  was  the  only 
other  mode  of  escape,  heard  the  report,  but  saw  no  person.  From 
the  manner  in  which  the  ball  had  entered  the  shutter,  it  was  clear 
that  it  had  been  discharged  by  some  person  who  was  close  to  the 
shutter ;  and  the  river  was  so  much  below  the  level  of  the  house, 
that  the  ball,  if  it  had  been  fired  from  thence,  must  have  reached  a 
much  higher  part  than  that  which  it  struck.     The  prisoner  declined 


CIRCUMSTANTIAL   EVIDENCE.  175 

the  offer  of  the  neighbours  to  remain  in  the  house  with  him  that 
night.  On  the  following  day  he  wrote  to  inform  the  deceased  of 
this  transaction,  stating  his  hope  that  the  shot  had  been  accidental, 
that  he  knew  of  no  person  who  had  any  animosity  against  him,  that 
he  wished  to  know  for  whom  it  was  intended,  and  that  he  should  be 
happy  to  hear  from  him,  but  much  more  so  to  see  him.  Mr.  Blight 
returned  home  on  the  23rd  of  September,  having  previously  been  to 
London  to  see  his  bankers  on  the  subject  of  the  XIOOO  draft. 
Upon  getting  home  the  draft  became  the  subject  of  conversation, 
and  the  deceased  desired  the  prisoner  to  go  to  Loudon 
and  not  to  return 'without  the  money.  Upon  his  leturn  [  *232  ] 
the  prisoner  and  the  deceased  spent  the  evening  iu  the 
hach  parlour,  a  different  one  from  that  in  which  the  family  usually 
sat.  About  eight  o'clock  the  prisoner  went  from  the  parlour  into 
the  kitchen  and  asked  the  servant  for  a  candle,  complaining  that  he 
was  disordered.  The  prisoner's  way  from  the  kitchen  was  through 
an  outer  door  which  fastened  by  a  spring  lock,  and  across  a  paved 
court  in  front  of  the  house,  which  was  enclosed  by  palisadoes,  and 
through  a  gate  over  a  wharf,  in  front  of  that  court,  on  which  there 
was  the  kind  of  soil  peculiar  to  premises  for  breaking  up  ships,  and 
then  through  a  counting-house.  All  of  these  doors ;  as  well  as  the 
door  of  the  parlour,  the  prisoner  left  open,  notwithstanding  the  state 
of  alarm  excited  by  the  former  shot.  The  servant  heard  the  privy- 
door  slam,  and  almost  at  the  same  moment  saw  the  flash  of  a  pistol 
at  the  door  of  the  parlour  where  the  deceased  was  sitting,  upon 
which  she  ran  and  shut  the  outer  door  and  gate.  The  prisoner  im- 
mediately afterwards  rapped  loudly  at  the  door  for  admittance,  with 
his  clothes  in  disorder.  He  evinced  great  apparent  concern  for  Mr. 
Blight,  who  was  mortally  wounded  and  died  on  the  following  day. 
From  the  state  of  the  tide,  and  from  the  testimony  of  various  per- 
sons who  were  on  the  outside  of  the  premises,  no  person  could  have 
escaped  from  them.  In  consequence  of  this  event  Mrs.  Blight 
returned  home,  and  the  prisoner,  in  answer  to  an  inquiry  about  the 
draft  which  had  made  her  husband  so  uneasy,  told  her  that  it  was 
paid,  and  claimed  the  whole  of  the  property  as  his  own.  Suspicion 
soon  fixed  upon  the  prisoner,  and  in  his  sleeping-room  was  found  a 
pair  of  stockings  rolled  up  like  clean  stockings,  but  with  the  feet 
plastered  over  with  the  sort  of  soil  found  on  the  wharf,  and  a  ramrod 
was  found  in  the  privy.  The  prisoner  usually  wore  boots,  but  on 
the  evening  of  the  murder  he  wore  shoes  and  stockings.     It  was 


176  ILLUSTRATIONS   OF  THE   FORCE   OP 

supposed  that,  to  prevent  alarm  to  the  deceased  or  the 
[  *233  ]     *female  servant,  the  murderer  must  have   approached 

without  his  shoes,  and  afterwards  have  gone  on  the  wharf 
to  throw  away  the  pistol  into  the  river.  All  the  prisoner's  state- 
ments as  to  his  pecuniary  transactions  with  Goom  and  his  right  to 
draw  upon  him,  and  the  payment  of  the  bill,  turned  out  to  be  false. 
He  attempted  to  tamper  with  the  servant-girl  as  to  her  evidence  be- 
fore the  coroner,  and  urged  her  to  keep  to  one  account ;  and  before 
that  officer  he  made  several  inconsistent  statements  as  to  his  pecuni- 
ary transactions  with  the  deceased,  and  equivocated  much  as  to 
whether  he  wore  boots  or  shoes  on  the  evening  of  the  murder,  as 
well  as  to  his  ownership  of  the  soiled  stockings,  which  however  were 
clearly  proved  to  be  his,  and  for  the  soiled  state  of  which  he  made 
no  attempt  to  account.  The  prisoner  suggested  the  existence  of 
malicious  feelings  in  two  persons  with  whom  the  deceased  had  been 
on  ill  terms  ;  but  they  had  no  motive  for  doing  him  any  injury,  and 
it  was  clearly  proved  that  upon  both  occasions  of  attack  they  were 
at  a  distance. 

The  prisoner's  motive  was  to  possess  himself  of  the  business  and 
property  of  his  benefactor ;  and  to  all  appearance  his  falsehoods  and 
duplicity  were  on  the  point  of  being  discovered.  His  apparent  in- 
caution  on  the  evening  of  the  murder  could  hardly  be  accounted  for 
after  the  preceding  alarm  by  any  other  supposition  than  that  it  was 
the  result  of  premeditation,  and  intended  to  afford  facilities  for  the 
execution  of  his  dark  purposes.  The  direction  of  the  first  ball 
through  the  shutter,  excluded  the  possibility  that  it  had  been  fired 
from  any  other  place  than  the  deceased's  own  premises  ;  and  by  a 
singular  concurrence  of  circumstances,  it  was  clearly  proved  that  no 
person  escaped  from  the  premises  after  either  of  the  shots,  so  that 
suspicion  was  necessarily  restricted  to  the  persons  on  the  premises. 

The  occurrence  of  the  first  attack  during  the  temporary 
[  *234  J     absence  of  the  servant  (that  absence  contrived  by  the  *pri- 

soner  himself ), — the  discovery  of  a  ramrod  in  the  very 
place  where  the  prisoner  had  been,  and  of  his  soiled  stockings  folded 
up  so  as  to  evade  observation, — his  interference  with  one  of  the  wit- 
nesses,— his  falsehoods  respecting  his  pecuniary  transactions  with 
Goom  and  with  the  deceased, — and  his  attempts  to  exonerate  him- 
self from  suspicion  by  implicating  other  persons, — all  these  cogent 
circumstances  of  presumption  tended  to  show  not  only  that  the  pri- 
soner was  the  only  person  who  had  any  motive  to  destroy  the  de- 
ceased, but  that  the  crime  could  have  been  committed  by  no  other 


CIRCUMSTANTIAL   EVIDENCE.  177 

person  ;  and  while  all  the  facts  were  naturally  explicable  upon  the 
hypothesis  of  his  guilt,  they  were  incapable  of  any  other  reasonable 
solution.     The  prisoner  was  convicted  and  executed*. 

3.)  Mr.  Benjamin  Robins,  a  respectable  farmer,  who  had  been  at 
Stourbridge  market  on  the  18th  of  December,  left  that  place  on  foot 
a  little  after  four  in  the  afternoon,  to  return  home,  a  distance  of  be- 
tween two  and  three  miles.  About  half  a  mile  from  his  own  house 
he  was  overtaken  by  a  man,  who  inquired  the  road  for  Kiddermin- 
ster ;  acd  they  walked  together  for  two  or  three  hundred  yards, 
when  the  stranger  drew  behind  and  shot  him  in  the  back,  and  then 
robbed  him  of  about  eleven  pounds  in  money  and  a  silver  watch. 
After  lingering  ten  days,  he  died  of  the  wound  thus  received.  Mr. 
Robins  noticed  that  the  pistol  was  long  and  very  bright,  and  that  the 
robber  had  on  a  dark-coloured  great-coat,  which  reached  down  to  the 
calves  of  his  legs.  Several  circumstances  of  correspondence  with 
the  description  given  by  the  deceased,  conspired  to  fix  suspicion 
upon  the  prisoner,  who  for  about  fourteen  months  had  worked  as  a 
carpenter  at  Ombersley,  seventeen  miles  from  Stour- 
bridge. It  was  discovered  that  he  *had  been  absent  [  *235  ] 
from  that  place  from  the  17  th  to  the  22nd  of  December ; 
that  on  the  23rd  of  that  month  he  had  taken  two  boxes,  one  con- 
taining his  working-tools  and  the  other  his  clothes,  to  Worcester,  and 
there  delivered  them  to  a  carrier,  addressed  to  John  Wood  at  an  inn 
in  London,  to  be  left  till  called  for,  the  name  by  which  he  was  known 
being  William  Howe  ;  and  that  on  the  25th  he  finally  left  Ombers- 
ley, and  went  to  London.  Upon  inquiry  at  the  inn  to  which  the 
boxes  were  directed,  it  was  found,  that  a  person  answering  the  de- 
scription of  the  prisoner  had  removed  them  in  a  mealman's  cart  to 
the  Bull  in  Bishopgate  Street,  and  that  on  the  5th  of  January  they 
had  been  removed  from  thence  in  a  cooper's  cart.  Here  all  trace 
of  the  boxes  seemed  cut  off ;  but  on  the  12th  of  January  the  police 
officers  succeeded  in  tracing  them  to  a  widow  woman's  house,  in  a 
court  in  the  same  street ;  when,  upon  examining  the  box  which  con- 
tained the  prisoner's  clothes,  they  found  a  screvf-barrel  pistol,  a  pis- 
tol key,  a  bullet  mould,  a  single  bullet,  a  small  quantity  of  gunpow- 
der in  a  cartridge,  and  a  fawn-skin  waistcoat ;  which  latter  circum- 
stance was  important,  as  the  prisoner  was  seen  in  Stourbridge  on  the 
day  of  the  murder,  dressed  in  a  waistcoat  of  that   kind.     By  re- 

*  Surrey  Spring  Ass.  1806,  coram  L.  C.  B.  Macdonald.     Gurney's  Short-hand  Re- 
port. 

25      ... 


178  ILLUSTRATIONS  OF  THE  FORCE  OF 

maining  concealed  in  the  woman's  house  the  police  -were  enabled  to 
apprehend  the  prisoner,  who  called  there  on  the  following  evening. 
Upon  his  apprehension,  he  denied  that  he  had  ever  been  at  Stour- 
bridge, or  heard  of  the  deceased  being  shot ;  and  he  accounted  for 
changing  his  name  at  Worcester,  by  stating  that  he  had  had  a  diffe- 
rence with  his  fellow  work-people,  and  afterwards  that  he  did  it  to 
prevent  his  wife,  whom  he  had  determined  to  leave,  from  being  able 
to  follow  him.  On  being  asked  Avhere  he  was  on  the  18th  of  De- 
cember, he  said  he  believed  at  Kidderminster,  a  town  about  six 
miles  from  Stourbridge.  Upon  the  prisoner's  subsequent  exa- 
mination before  the  magistrates,  he  stated  that  he  was  at 
[  *236  ]  *Kidderminster  on  the  17th  of  December,  and  at  Stour- 
bridge on  the  18th,  (the  day  of  the  murder,)  but  that  he 
was  not  out  of  the  latter  town  from  the  time  of  his  arrival  there,  at 
one  o'clock  in  the  afternoon,  until  half-past  seven  o'clock  on  the  fol- 
lowing morning  ;  that  in  the  afternoon  of  that  day  he  went  to  look 
about  the  town  for  lodgings,  and  ultimately  went  to  his  lodgings 
about  six  o'clock  in  the  evening.  The  account  which  the  prisoner 
thus  gave  of  himself  was  proved  to  be  a  tissue  of  falsehoods.  He 
had  been  seen  by  several  witnesses  between  four  and  five  in  the  af- 
ternoon of  the  day  in  question,  on  the  road  leading  from  Stourbridge 
toward,  and  not  far  from,  the  spot  where  the  murder  was  committed. 
About  halfpast  five,  the  prisoner  was  seen  going  in  great  haste  in 
the  direction  from  the  spot  where  the  deceased  had  been  shot,  to- 
ward Stourbridge.  He  afterwards  called  at  two  public-houses  at 
Stourbridge, — at  the  first  of  them  about  six  o'clock,  and  at  the  other 
about  nine  o'clock  the  same  evening  ;  at  both  of  which  places  the 
robbery  and  attack  were  the  subjects  of  conversation,  in  which  the 
prisoner  joined  ;  and  he  was  distinctly  spoken  to  as  having  worn  a 
fawn-skin  waistcoat.  On  the  21st  of  December  the  prisoner  sold  a 
watch  of  which  the  deceased  had  been  robbed,  at  Warwick,  stating 
it  to  be  a  family  watch.  But  the  most  conclusive  circumstance  was, 
that  a  letter  was  sent  by  the  prisoner  while  in  gaol  to  his  wife,  who, 
being  herself  unable  to  read,  had  got  a  person  to  read  it  to  her  ; 
and  it  was  found  to  contain  a  direction  to  remove  some  things  con- 
cealed in  a  rick  near  Stourbridge  ;  where,  upon  search  being  made, 
were  found  a  glove,  containing  three  bullets,  and  a  screw-barrel  pis- 
tol, the  fellow  to  that  found  in  the  prisoner's  box ;  and  a. gun-maker 
deposed  that  the  bullet  extracted  from  the  wound  had  been  discharg- 
ed from  a  screw-barrel  pistol,  such  as  that  produced,  and  that  that 
bullet  and  the  bullet  found  in  the  prisoner's  box  were  cast  in  the 
same  mould. 


CIRCUMSTANTIAL   EVIDENCE.  179 

*The  possibility  of  the  prisoner's  guilt  was  unquestion- 
able, inasmusli  as  he  had  been  seen  near  the  spot  at  or  [  *2oT  ] 
about  the  moment  when  the  murder  was  committed  ;  his 
denial,  on  his  apprehension,  contrary  to  the  truth,  that  he  had  ever 
been  at  Stourbridge,  or  heard  of  the  act,  denoted  a  consciousness  of 
the  fatal  effect  of  any  evidence  tending  to  establish  the  fact  of  his 
presence  there.  The  discovery  of  a  fawn  skin  waistcoat  in  the  pris- 
oner's possession,  corresponding  with  that  worn  by  him  at  Stourbridge 
on  the  evening  of  the  murder, — his  possession  and  disposal  of  the 
deceased's  Avatch  within  three  days  after  he  had  delivered  it  to  his 
murderer, — his  false  statement  that  it  was  a  family  watch, — the  dis- 
covery of  the  articles  in  the  rick,  in  consequence  of  his  own  act, — 
the  correspondence  between  the  weapon  found  in  the  rick  and  that 
found  in  the  prisoner's  box,  and  between  the  bullet  extracted  from 
the  wound  and  that  found  in  the  same  box,  and  the  peculiarity  that 
the  deceased  had  been  killed  by  a  wound  from  a  screw-barrelled  pis- 
tol,—-all  these  circumstances  placed  the  guilt  of  the  prisoner  beyond 
any  reasonable  doubt,  and  there  was  no  possibility  of  referring  them 
to  casual  and  accidental  coincidence,  or  of  explaining  them  upon  any 
hypothesis  compatible  with  his  innocence.  The  prisoner  was  con- 
victed, and  before  his  execution  fully  confessed  his  guilt.* 

4.)  Three  men,  named  Smith,  Varnham  and  Timms,  were  tried  be. 
fore  Mr.  Justice  Coltman,  at  the  Norfolk  spring  assizes,  1837,  for  the 
murder  of  Hannah  Mansfield,  on  Tuesday  the  3d  of  January  preced- 
ing. The  deceased,  who  was  about  forty  years  of  age,  lived  alone 
in  a  cottage  at  Denver,  on  the  border  of  a  common,  at  a  distance 
from  the  turnpike  road  leading  from  Hilgay  through  Denver  to 
Downham,  and  remote  from  any  other  house,  except  an 
adjoining  cottage  under  the  same  roof,  occupied  by  a  *la-  [  *238  ] 
borer  and  his  family.  The  deceased  had  acquired  some 
repute  as  a  fortane-teller,  for  which  purpose  she  kept  by  her  some 
money,  which  she  called  her  bright  money ;  and  she  possessed  a 
quantity  of  plate,  consisting  of  cream-jugs,  table  and  tea-spoons, 
sugar-tongs,  saltcellars,  and  a  silver  tankard,  which  she  kept  in  a 
corner  cupboard  and  had  frequently  boastfully  displayed.  The  de- 
ceased spent  the  evening  preceding  the  murder  at  her  neighbour's 
house,  which  she  left  about  half-past  eleven ;  her  neighbour's  wife, 
being  engaged  in  washing,  did  not  go  to  bed  till  one  o'clock  ;  when 
she  disturbed  her  husband,  who  as  he  lay  awake  about  two  o'clock 
heard  a  noise  in  the  deceased's  cottage,  but  hearing  nothing  further 

*  Stafford  Sp.  As.  1813,  coram  Mr.  Justice  Bayley. 


180  ILLUSTRATIONS  OF  THE  FORCE  OF 

he  went  to  sleep  again.     About  ten  o'clock  on  the  following  morn- 
inof  the  poor  woman  was  found  dead  in  her  cottage,  with  her  throat 
cut  from  ear  to  ear ;  the  cottage  door  had  been  split  open  by  some 
violent  effort,  and  the  cottage  had  been  robbed  of  the  deceased's 
money  and  treasure.     The  footsteps  of  two  men  were  traced  from 
the  turnpike-road  towards  the  deceased's  house,  and  from  the  house 
into  the  stack-yard,  and  back  again  to  the  footpath,  and  across  the 
common  to  a  run  of  water,  and  thence  to  the  turnpike  road ;  one  of 
the  footsteps  was  very  large,  and  peculiarly  shaped  and  nailed, 
there  being  four  na'.ls  in  the  center  of  the  heel,  in  a  line  from  back 
to  front,  and  two  on  each  side  ;  and  there  were  nails  also  in  the 
waist  of  the  heel,  between  the  sole  and  the  heel,  and  the  sole  was 
very  full  of  nails.     The  prisoner  Timms  shoes  exactly  corresponded 
with  these  marks ;  the  other  footstep  was  a  smaller  one,  and  full  of 
nails.     The  large  footmark  proceeding  from  the  house  had  marks  of 
blood,  and  the  smaller  footstep  was  on  the  other  side  of  the  path, 
and  the  center  of  the  path  was  so  hard  and  beaten  that  a  third  per- 
son might  have  walked  on  it  without  leaving  any  impression.     Only 
the  larger  footstep  was  traced  to  the  stack-yard,  but  both 
[  *2o9  ]     footsteps  were  *traced  in  a  direction  toward  and  from  the 
house.     There  was  also  the  footstep  of  a  third  person, 
who  appeared  to  have  been  stationed  for  the  purpose  of  watching  the 
back  door  of  the  adjoining  cottage.     The  three  prisoners  had  worked 
in  the  neighbuorhood  as  excavators,  a  few  months  before  the  murder  ; 
and  about  twelve  months  previously,  the  prisoner  Smith,  in  company 
with  two  other  men,  had  called  at  the  other  cottage,  and  asked  if 
Hannah  Mansfield  was  at  home,  supposing  that  to  be  her  cottage, 
stating  that  he  had  lost  some  tools,  about  which  he  wished  to  consult 
her.     The  prisoners  had  been  loitering  at  various  low  public  houses 
in  the  neighborhood  of  the  deceased's  cottage  for  several  days  pre- 
ceding the  murder,  and  they  left  one  of  those  public  houses  about 
two  miles  from  her  residence,  where  they  had  spent  the  evening, 
about  eleven  o'clock  on  the  night  of  the  murder.     Three  men,  cor- 
responding in  appearance  with  the  prisoners,  one  of  whom  was  iden- 
tified as  the  prisoner  Timms,  were  met  on  the  following  morning 
about  three  o'clock,  a  mile  from  the  deceased's  house,  walking  very 
fast  along  the  road  from  Denver  to  Downham  ;  and  about  half  past 
eight  o'clock  the  same  morning  the  same  three  men  were  seen  at  Lev- 
erington,  fourteen  miles  from  Denver,  apparently  fatigued,  and  the 
pocket  of  one  of  them  was  stuffed  with  something  bulky.     At  Sutton 
St.  Edmund's,  about  twenty,  miles  from  Denver,  the  prisoners  stopped 


CIRCUMSTANTIAL   EVIDENCE.  181 

at  a  public  house  to  refresh  themselves,  and  one  of  them  paid  away 
a  very  bright  and  unworn  sixpence  and  shilling,  of  the  year  1817. 
After  having  staid  some  hours  the  prisoners  proceeded  to  Whaplode 
Drove,  where  they  remained  at  a  public  house  for  several  days,  and 
fell  into  company  with  a  shoemaker,  who  made  two  pair  of  boots 
for  the  other  prisoners  Varnham  and  Smiih,  for  which  Timms  paid  in 
a  half  sovereign,  a  half  guinea  and  a  sixpence.  Varnham  cut  the 
tops  from  bis  old  boots,  and  the  landlord's  wife  burned 
the  soles,  *and  threw  the  elates  upoa  an  ash  heap,  [  *2-±0  ] 
where  they  were  afterwards  found  by  a  police  officer, 
and  they  exactly  fitted  one  of  the  impressions  made  in  the  snow 
near  the  cottage.  While  sitting  by  the  fireside  one  evening 
at  this  public-house,  the  prisoner  Smith  laid  hold  of  the  bottom 
of  his  pocket,  which  seemed  heavy,  and  a  bundle  contained 
in  a  silk  handkerchief  dropped  out,  from  which  some  teaspoons,  a 
pair  of  sugar-tongs  and  some  glass  fell  on  the  floor  ;  the  glass 
was  broken,  the  other  things  he  hastily  collected  and  replaced . 
On  the  following  day  the  prisoner  Timms  called  upon  the  shoemaker, 
who  had  been  present  on  the  previous  evening  ostensibly  to  talk 
about  the  boots  which  he  had  to  make,  and  took  occasion  to  remark, 
that  "  he  need  not  say  anything  about  what  he  had  seen,  as  it  might 
get  the  landlord  into  a  scrape,  though  for  themselves  they  did  not 
care  about  it,  as  thej''  had  got  the  things  from  Lisbon."  On  the 
Saturday  following  the  prisoners  were  traced  to  Wittlesea,  where 
they  ofiered  for  sale  to  a  gunmaker  a  mass  of  molten  silver,  upwards 
of  two  pounds  weight,  which  the  prisoner  Timms  said  had  consisted 
of  spoons,  salt-cellars,  and  elegant  things  fit  for  any  table, — a  de- 
scription corresponding  with  the  deceased's  plate  ;  and  they  ofiered 
to  purchase  a  pair  of  pistols.  The  silver  was  cut  by  the  person  to 
Avhom  it  Avas  offered  into  six  or  seven  pieces,  and  offered  by  him  for 
sale  to  another  person  ;  but  not  having  succeeded  in  disposing  of  it, 
they  gave  his  wife  in  return  for  his  trouble  a  small  strip  of  it,  weigh- 
ing about  an  ounce,  and  three  keys,  which  were  afterwards  identified 
as  having  belonged  to  the  deceased.  The  prisoners  were  then 
traced  to  and  apprehended  at  Doncastcr.  To  the  officers  they  gave 
false  accounts  of  themselves.  Stains  of  blood  were  found  upon 
some  parts  of  the  clothes  of  all  the  prisoners,  and  the  clothes  of  two 
of  them  appeared  to  have  been  washed  in  order  to  remove  stains. 
On  the  person  of  Smith  were  found  several  pounds  in 
money,  a  picklock  key  *lucifer  matches,  and  a  knife  on  [  *241  ] 
which  was  some  coagulated  blood  ;  and  on  the  person  of 


182  ILLUSTRATIONS  OF  THE  FORCE  OF 

Timms  ^vas  found,  Avrappcd  up  in  a  piece  of  linen,  a  mass  or  wedge 
of  molten  silver.  With  several  of  their  fellow-prisoners  Smith  and 
Varnham  conversed  upon  the  subject  of  this  cruel  action  in  lan- 
guage of  disgusting  coarseness  and  brutality ;  which  implied  guilty 
knowledge  of  and  participation  in  the  crime,  since  they  expressed 
confidence  of  security  if  their  companions  remained  silent,  as  no- 
body had  seen  them  go  to  the  house. 

The  knowledge  which  the  prisoners  possessed  of  the  locality  of  the 
deceased's  cottage,  and  of  her  character  and  circumstances, — their 
presence  in  the  vicinity  at  so  unseasonable  and  suspicious  an  hour,  in 
the  inclement  season  of  mid-winter,  and  so  close  upon  the  time  when 
the  deceased  was  murdered, — their  subsequent  wanderings,  appar- 
ently without  any  object, — their  profuse  expenditure  of  money,  and 
wanton  destruction  of  valuable  articles  of  apparel, — their  possession 
of  so  much  money  and  molten  silver  -when  apprehended, — the  cor- 
respondence of  the  shoe  marks  about  the  cottage  with  the  shoes  of 
two  of  the  prisoners, — and,  above  all,  the  possession  of  the  deceas- 
ed's keys, — the  concurrence  of  these  strong  and  otherwise  inexpli- 
cable facts  could  not  be  rationally  accounted  for  except  by  the  con- 
clusion of  the  guilt  of  the  prisoners,  who  made  a  full  confession. 
Smith  and  Timms  were  executed ;  but  the  sentence  as  to  Varnham 
was  mitigated.* 

A  foreigner,  named  Courvoisier,  was  tried  at  the  Central  Criminal 
Court  (June  1840)  for  the  murder  of  Lord  William  Russell,  an 
elderly  gentleman,  seventy  five  years  of  age,  a  widower,  who  lived 
in  Korfolk  Street,  Park  Lane.  The  deceased's  family  consisted  of 
the  prisoner,  who  had  been  in  his  service  as  valet  about  five  weeks, 
and  of  a  housemaid  and  cook,  who  had  lived  with  him 
[  *242  ]  three  years  ;  *beside  a  coachman  and  groom  who  did  not 
live  in  the  house.  On  the  6th  of  May  the  female  ser- 
vants went  to  bed  as  usual,  and  the  housemaid  on  going  to  bed  light- 
ed a  fire  and  set  a  rush-light  in  her  master's  bedroom,  which  pre- 
sented its  usual  appearance  ;  the  prisoner  remained  sitting  up  to 
warm  his  bed.  The  housemaid  rose  about  half  past  six  on  the  follow- 
ing morning,  and  on  going  down  stairs  knocked,  as  usual,  at  the 
prisoner's  door.  At  her  master's  door  she  noticed  the  warming-pan, 
which  was  usually  taken  downstairs  ;  on  going  into  a  back  drawing- 
room  she  found  the  drawers  of  her  master's  desk  open,  his  bunch  of 
keys  lying  on  the  carpet,  and  a  screw-driver  lay  on  a  chair.  In  the 
hall  his  Lordship's  cloak  was  found  neatly  folded  up,  together  with 

♦  Rex  V.  Soiith,  Varnham  and  Timms. 


CIRCUMSTANTIAL   EVIDENCE.  183 

a  bundle,  containing  a  variety  of  valuable  articles,  most  of  them 
portable,  such  as  a  thief  would  ordinarily  put  in  his  pocket  instead 
of  deliberately  packing  up.  In  the  dining-room  she  found  several 
articles  of  plate  scattered  about.  The  street-door,  though  shut,  Avas 
unfastened,  but  the  testimony  of  the  police  who  passed  the  house 
many  times  in  the  night  rendered  it  very  unlikely  that  any  person 
had  left  it  in  that  direction.  Alarmed  by  these  appearances  the 
housemaid  called  the  prisoner,  and  found  him  dressed,  though  only 
a  few  minutes  had  elapsed  since  she  had  knocked  at  his  door,  which 
was  a  much  shorter  time  than  he  usually  took  to  dress.  They  went- 
together  downstairs  ;  and  after  examining  the  state  of  the  dining 
room  and  the  prisoner's  pantry,  where  the  cupboard  and  drawers 
were  all  found  opened,  they  proceeded  to  their  master's  bed-room 
where  he  was  found  with  his  throat  cut,  in  a  manner  which  must 
have  produced  instant  death.  His  Lordship  usually  placed  his 
watch  and  rings  on  his  dressing-table ;  but  they  had  been  taken 
away,  and  his  note-cases,  in  one  of  which  the  prisoner  stated  that  he 
had  seen  a  £10  and  <£5  note  a  few  days  before,  were  open 
and  emptied  of  their  contents.  A  book  was  found  *on  [  *2-13  ] 
the  floor,  and  his  Lordship's  spectacles  lay  upon  it,  and 
there  was  a  candlestick  about  four  or  five  feet  from  the  bed,  with 
the  candle  burned  to  the  socket.  These  articles  appeared  to  have 
been  so  placed,  to  create  the  impression  that  his  Lordship  had  been 
murdered  while  reading  ;  but  he  was  not  accustomed  to  read  in  bed, 
and  only  so  much  of  the  rush-light  was  burned  as  would  have  been 
consumed  in  about  an  hour  and  a  half,  though  the  candle  was  com- 
pletely burned  away.  The  prisoner  stated  that  he  left  his  master 
reading.  Upon  the  door  of  the  prisoner's  pantry,  leading  to  a  back 
area,  were  marks  as  if  it  had  been  broken  into,  and  the  prisoner 
suggested  that  the  thieves  had  entered  by  that  door ;  but  they  ap- 
peared to  have  been  made  from  within,  and  none  of  them  had  been 
made  by  the  application  of  sufficient  force  to  break  open  the  door  ; 
the  bolts  appeared  not  to  have  been  shot  at  the  time,  and  the  socket 
of  one  of  them  had  been  wrenched  off  when  the  door  Avas  open. 
The  marks  on  this  door  appeared  to  have  been  made  with  a  bent 
poker  found  in  the  pantry.  It  was  clear  that  no  person  had  entered 
the  premises  from  the  rear,  since  in  one  direction  they  could  have 
been  approached  only  by  passing  over  a  wall  covered  with  dust, 
which  would  have  retained  the  slightest  impression  ;  and  on  the 
other,  the  party  must  have  passed  over  some  tiling  which  was  so  old 
and  perished  as  necessarily  to  have  been  damaged  by  the  passing  of 


184  ILLUSTRATIONS  OF  THE  FORCE  OF 

any  person  over  it ;  while  from  the  testimony  of  the  police  it  was 
equally  clear  that  no  person  had  escaped  through  the  front  door. 
For  several  days  the  missing  articles  could  not  be  found,  and  the 
case  appeared  to  be  wrapt  in  impenetrable  mystery  ;  but  at  length, 
upon  a  stricter  search,  his  Lordship's  rings  and  Waterloo  medal, 
five  sovereigns  and  a  £10  note,  the  latter  of  which  had  been  removed 
from  his  note  case,  were  found  concealed  behind  the  skirting-board 
in  the  prisoner's  pantry ;  and  beneath  the  leaden  cover- 
[  *244  ]  ing  of  a  sink  was  found  his  Lordship's  watch,  *and  seve- 
ral other  articles  were  also  found  in  other  parts  of  the 
same  room.  But  a  quantity  of  plate  which  had  been  stolen  still 
remained  undiscovered,  notwithstanding  the  most  diligent  efforts  to 
discover  it  :  and  its  non-production  was  the  only  circumstance  which 
gave  any  apparent  countenance  to  the  possibility  that  the  house  had 
been  robbed  on  the  night  of  the  murder,  by  parties  who  had  escaped. 
The  mystery  was  cleared  up  however  in  a  very  extraordinary  man- 
ner, during  the  progress  of  the  trial.  About  a  fortnight  before  the 
murder,  the  prisoner  had  left  a  parcel  in  the  care  of  an  hotel-keeper 
with  whom  he  had  formerly  lived  as  waiter,  whose  curiosity  was  ex- 
cited to  examine  its  contents  by  reading  in  a  newspaper  a  suggestion 
that,  as  the  prisoner  was  a  foreigner,  he  had  probably  left  the  plate 
at  one  of  the  foreign  hotels  in  London.  The  parcel  was  found  to 
contain  the  missing  plate.  The  prisoner  had  been  known  in  this 
situation  only  by  his  Christian  name,  which  circumstance  accounted 
for  the  fact  that  suspicion  had  not  been  sooner  excited  by  the  ac- 
count of  the  murder  and  robbery  which  had  appeared  in  the  daily 
journals.  This  discovery,  in  conjunction  with  the  simulated  appear- 
ances of  external  violence  and  robbery,  and  the  conclusive  evidence 
that  the  premises  had  not  been  entered  from  without,  made  it  cer- 
tain that  the  robbery  of  the  plate  and  the  murder  had  been  commit- 
ted by  one  of  the  inmates ;  while  the  manner  and  place  of  conceal- 
ment, and  the  artless  and  satisfactory  account  given  by  the  female 
servants,  rendered  it  equally  clear  that  the  prisoner  and  he  alone  could 
have  been  the  perpetrator  of  this  cruel  action.  The  prisoner  made 
a  confession  of  his  guilt,  and  was  executed  pursuant  to  his  sentence.* 
It  is  scarcely  possible,  in  the  absence  of  unimpeachable  direct 
evidence,  to  conceive  of  any  grounds  of  moral  assurance 
[  *245  ]  and  judgment  more  satisfactory  and  conclusive  *than 
those  afforded  by  such  combinations  of  facts  as  were  pre- 
sented in  the  foregoing  cases. 

*  Sessions  Papers,  1840. 


CONCLUSION.  185 

SECTIONS. 

CONCLUSION. 

The  rules  of  evidence  are  the  practical  maxims  of  legal  and  phi- 
losophic sagacity  and  experience,  matured  and  methodized  by  a  suc- 
cession of  wise  men,  as  the  best  means  of  discriminating  truth  from 
error,  and  of  contracting  as  far  as  possible  the  dangerous  power  of 
judicial  discretion.  They  have  their  origin  in  man's  nature,  as  an 
intellectual  and  a  moral  bsing ;  and  "  are  founded"  (to  use  the 
language  of  one  of  the  most  eloquent  of  advocates,)  "  in  the  chari- 
ties of  religion,  in  the  philosophy  of  nature,  in  the  truths  of  history, 
and  in  the  experience  of  common  life*."  Such  rules  must  of  ne- 
cessity be  substantially  the  same,  in  all  cases  and  in  every  civilized 
country  ;  and  the  inviolable  observance  of  them  is  indispensable  to 
social  security  and  happiness.  To  disregard  them,  under  whatever 
circumstances  or  pretext,  is  to  subject  to  the  sport  of  chance  those 
fundamental  rights  which  it  is  the  object  of  social  institutions  to 
secure. 

The  design  of  this  Essay  has  been  to  investigate  the  foundations 
of  our  faith  in  circumstantial  evidence,  to  ascertain  its  limits  and  its 
just  moral  effect,  and  to  illustrate  and  confirm  the  reasonableness  of 
the  practical  rules  which  have  been  established  in  order  to  prevent 
the  unauthorized  assumption  of  facts,  and  to  secure  to  relevant  facts 
their  proper  weight.  It  has  been  maintained  that  circumstantial 
evidence  is  inherently  of  a  different  and  inferior  nature  from  direct 
and  positive  testimony  ;  but  that  nevertheless  such  evi- 
dence, ulthough  not  invariably  so,  is  most  *frequently  su-  [  *246  ] 
perior  in  proving  power  to  the  average  strength  of  direct 
evidence ;  and  that,  under  the  safeguards  and  qualifications  which 
have  been  stated,  it  affords  a  secure  ground  for  the  most  important 
judgments  in  cases  where  direct  evidence  is  not  to  be  obtained. 

It  must  however  be  conceded,  that  "  with  the  wisest  laws,  and 
with  the  most  perfect  administration  of  them,  the  innocent  may 
sometimes  be  doomed  to  suffer  the  fate  of  the  guilty  ;  for  it  were 
vain  to  hope  that  from  any  human  institution  all  error  can  be  exclud- 
edf."  But  certainty  has  not  always  been  attained  even  in  those 
sciences  which  admit  of  demonstration  ;  still  less  can  unfailing  assu- 

*  29  St.  Tr.  966. 

t  Romilly'8  Obs.  on  the  C.  L.  of  Engl.  p.  74. 

26 


186  CONCLUSION. 

ranee  be  invariably  expected  in  investigations  of  moral  and  contin- 
gent truth.  Nor  caii  any  argument  against  the  validity  and  suffi- 
ciency of  circumstantial  evidence  as  a  means  of  arriving  at  moral 
certainty  be  drawn  from  the  consideration  that  it  has  occasionally 
led  to  erroneous  convictions,  which  does  not  equally  apply  as  an  ob- 
jection against  the  validity  and  sufficiency  of  moral  evidence  of  eve- 
ry kind  ;  and  it  is  believed  that  a  far  greater  number  of  mistaken 
sentences  have  taken  place  in  consequence  of  false  and  mistaken 
direct  and  positive  testimony,  than  from  erroneous  inferences  drawn 
from  circumstantial  evidence. 

These  considerations  ought  not  therefore  to  produce  an  unreasona- 
ble and  indiscriminate  scepticism ;  the  legitimate  consequence  of 
such  reflections  should  be  to  inspire  a  salutary  caution  in  the  recep- 
tion and  estimate  of  circumstantial  evidence,  and  to  render  the  legis- 
lator especially  wary  how  he  aurhorizes,  and  the  magistrate  how  he 
inflicts,  punishment  of  a  nature  which  admits  neither  of  reversal  nor 
mitigation.  Would  that  the  total  abolition  of  such  punishment  were 
compatible  with  the  paramount  claims  of  social  security  ;  It  is  in- 
dispensable however,  under  every  system,  to  the  very  ex- 
[  *247  ]  istence  of  society,  that  the  tribunals  should  *act  upon 
circumstantial  evidence.  Infallibility  belongs  not  to  man ; 
and  even  his  strongest  degree  of  moral  assurance  must  be  accompa- 
nied by  the  possible  danger  of  mistake  ;  but,  after  just  efiect  has 
been  given  to  sound  practical  rules  of  evidence,  there  will  remain 
no  other  source  of  uncertainty  or  fallacy,  than  that  general  liabiUty 
to  error,  which  is  necessarily  incidental  to  all  investigations  founded 
upon  moral  evidence,  and  from  which  no  conclusion  of  the  human 
judgment  in  relation  to  questions  of  contingent  truth,  whether  based 
upon  direct  or  circumstantial  evidence,  can  be  absolutely  and  entire- 
ly exempt. 


INDEX. 


<  .^.^  > 

[The  figures  refer  to  the  original  pages,  indented  in  the  margin,] 
<  »«■  > 


A. 

Actions,  the  subject  of  human  laws,  40. 

Affirmative  to  be  proved,  145. 

Alibi,  unfavourable  presumption  from  unsuccessful  attempts  to  es- 
tablish, 83. 

artifices  to  give  effect  to  false  defence  of,  83. 

obsei-vations  on  defence  of,  132. 

circumstances   which   increase   the   credibility  of  defence  of, 

133. 

remarkable  case  of,  141. 


Analogy,  11. 

Anno-domini  water-mark,  29,  114. 

Assurance,  nature  of  diiferent  kinds  of,  4. 

B. 
Belief,  nature  and  degrees  of,  5. 

C. 

Certainty,  mathematical,  3,  6. 

moral,  5,  6,  210. 

Certitude,  absolute,  5. 

Chances,  doctrine  of,  6,  8,   14. 

Character,  evidence  of,  131. 

Circumstances,  concurrence  of,  effect  of,  213. 

Circumstantial  evidence,  defined,  15. 

essential  characteristics  of,  15. 

inferior  to  direct  evidence,  26. 

inculpatory,  moral,  37. 

mechanical  and  extrinsic,  90. 

exculpatory,  120. 

Concealment,  presumption  from,  70. 

Concurrence  of  independent  witnesses  or  facts,  effect  of,  213. 
Confederacy,  difficulty  of,  where  witnesses  numerous,  217. 
Confessional  evidence,  direct,  60. 

must  be  voluntary,  60. 

not  obtained  by  torture,  61. 


188  INDEX. 

Confessional  evidence,  must  be  taken  together,  65, 

indirect,  60. 

Confessions,  false,  62,  66. 

Consistency  of  witnesses  necessary,  217. 

Consistency  of  conduct  presumptive  of  innocence,  70, 

Convictions,  erroneous,  instances  of,  54,  63,  66,  82,  91,  92,  105,  106, 

125,  130,  139,  162,  163. 
Corpus  delicti,  confession  not  sufficient  proof  of,  61. 

general  doctrine  as  to  proof  of,  156. 

may  be  proved  by  circumstantial  evidence,  158. 

application  of  the  doctrine  as  to  proof  of,  to  cases  of  homicide 

in  general,  162. 

in  cases  of  poisoning,  178. 

in  cases  of  infanticide,  203. 


Counsel,  right  of  defence  by,  152. 

Credibility  or  internal  probability,  10. 

Crime,  preparations  for  commission  of,  46. 

possession  of  means  and  instruments  of,  46,  189. 

Dates  and  time,  verification  of,  1 14. 

Death,  proof  of,  as  part  of  the  corpus  delicti,  152. 

Declarations  of  intention,  effect  of,  45. 

Demonstration,  defined,  3,  5. 

Dependent  witnesses  or  circumstances,  effect  of,  214. 

Depositions,  prisoners'  right  to  copies  of,  and  to  inspect,  219. 

Discrepancies  in  testimony,  effect  of,  222. 

E. 

Evidence,  defined,  1. 

various  kinds  of,  2. 

intuitive,  3. 

Evidence  of  demonstration,  3,  5. 

moral,  3,  5. 

of  testimony,  13. 

direct,  16. 

direct,  superior  to  circumstantial,  26,  161. 

circumstantial,  characteristic  of,  15. 

proper  subjects  of,  16. 

sources  of,  34. 

classification  of,  25,  35. 

inculpatory  moral,  37. 

mechanical,  90. 

exculpatory,  120. 


INDEX.  189 

Evidence  of  demonstration,  direct,  general  grounds  of  force  of,  209. 

special  grounds  of  force  of,  213. 

presumptive,  16. 

confessional  direct,  60. 

indirect,  67. 

suppression,  destruction,  fabrication  and  simulation  of,  72. 

— : —  rules  of  induction  applicable  to,  135. 


Experience,  meaning  of,  10. 
province  of,  11. 

.    •  F. 

Fabricated  circumstances  of  presumption,  130. 
Facility  of  disproof  often  imaginary,  219. 
Fear,  presumption  from  marks  of,  70. 

inconclusiveness  of,  71. 

Footmarks,  evidence  from,  99  et  seq. 
Flight,  presumption  from,  70. 

inconclusiveness  of,  71. 

Force  of  circumstantial  evidence,  cases  in  illustration  of,  225  et  seq. 

H. 

Handwriting,  proof  of,  104. 
comparison  of,  109. 


Harmony  amongst  witnesses,  220. 

Homicide,  general  rales  as  to  proof  of  corpus  delicti  in  cases  of,  162. 

Human  remains,  destruction  of,  77. 

identification  of,  164. 


Identification  of  property,  104. 

of  person,  90. 

grounded  on  family  likeness,  94. 

from  a  portrait,  94. 

from  preservation  of  remains,  95. 

from  articles  of  dress,  &c.,  95. 

from  correspondence  of  fragments  of  articles,  95-99. 

from  impressions  of  shoes,  99-104. 

from  articles  of  property,  104. 

quantity  of  light  necessary  for,  93. 

of  human  remains  by  circumstantial  evidence,  164. 

Identity,  cases  of  mistaken,  of  person,  31,  67,  82,  91,  92. 
of  things,  105  et  seq. 


Inculpatory  circumstantial  evidence,  37. 
Indications,  moral,  37. 


190  INDEX. 

Indications,  inculpatory,  37. 

mechanical,  90. 

Indigence,  sudden  transition  from,  suspicious,  54. 
Induction,  defined,  135. 

rules  of,  136  et  seq. 

Infanticide,  presumption  of,  from  concealment  of  birth,  21,  125. 

• proof  of  corpus  delicti  in  cases  of,  203. 

Intention,  declarations  of,  45. 
Intuition,  3. 

J-  •    , 

Judgment,  defined,  1. 

Judgments,  intuitive,  3. 

deductive  or  inferential,  16. 


Light,  quantity  necessary  to  identification,  93. 
Likeness,  family,  a  ground  for  inferring  identity,  94. 

M. 

Mathematical  certainty,  3,  6. 
Moral  evidence,  3,  5. 

certainty,  5,  6,  10. 

probability,  6. 

indications,  37. 

Motives  to  crime,  presumptions  founded  upon,  37. 

not  the  proper  subject  of  testimony,  43. 

absence  of,  presumptive  of  innocence,  41. 

O. 

Omissions  in  testimony,  effect  of,  224. 
Onus  prohandi,  143. 

P. 

Poisoning,  proof  of,  178. 

. from  symptoms,  178. 

fioyn. post-mortem  appearances,  178. 

. from  chemical  tests,  179. 

from  moral  circumstances,  75, 187. 

analysis  of  remarkable  cases  of,  115,  174,  176,  178,  183, 

189,  192,  196,  198. 
Portrait,  identification  from  a,  94. 
Possession,  criminal,  of  poison,  189. 

recent,  of  fruits  of  crime,  47  et  seq. 

Prejudice  often  epidemic,  71. 


INDEX.  191 

Preparations  for  commission  of  crime,  46. 
Presumptions,  what,  17. 

natural,  18. 

legal,  18-25. 

— —  classification  of,  25. 

statutable,  of  infanticide,  25. 

writings  of  the  civilians  on,  19,  22  et  seq. 

Presumptions  founded  on  motives,  37. 

from  declarations  of  intention,  45. 

from  preparations  for  crime,  46. 

from  recent  possession  of  the  fruits  of  crime,  47-57. 

from  sudden  transition  from  indigence,  54. 

from  unexplained  appearances  of  suspicion,  57. 

from  false  explanations  of  suspicious  appearances,  59. 

from  indirect  confessional  evidence,  60. 

from  concealment,  disguise,  flight,  and  other  indications  of 

fear,  70. 

from  suppression  or  destruction  of  evidence,  72. 

from  attempts  to  prevent  post-mortem  examination,  75. 

from  destruction  of  human  remains,  77. 

from  attempts  to  pervert  the  course  of  justice,  78. 

from  simulation  of  facts,  79. 

from  false  representations,  79. 

from  obliteration  of  marks  of  identity,  75. 

from  unsuccessful  attempts  so  establish  an  alibi,  83. 

from  secret  buiying  or  disposing  of  body,  206. 

of  murder  from  concealment  of  birth  abolished,  22,  125,  206. 

from  false  representations  to  prepare  connections  for  event  of 


death,  79. 

■         statutory,  84. 

exculpatory,  120. 

prima  facie,  of  innocence,  120. 

from  discrepancies  in  inculpatory  evidence,  12L 

from  inconsistency  of  demeanour  and  conduct  in  inculpa- 
tory witnesses,  123. 

— — from  absence  of  criminal  motives,  124. 

from  coimteracting  motives,  125. 

from  absence  of  marks  of  fear  and  mental  emotion,  127. 

from  circumstances  of  counter  presumption,  127. 

from  character,  131. 

from  alihi,  132. 

Presumptive  evidence,  what,  16, 

Probability,  defined,  5,  6. 

mathematical,  5, 

— —  moral,  6. 


192  INDEX. 

Probability,  internal,  or  credibility,  10. 
Proof,  defined,  1. 

R. 

Rules  of  induction  applicable  to  circumstantial  evidence,  135  et  seq. 

S. 
Simulation  of  facts,  79. 
Statutory  presumptions,  84. 
Suspicion  unfavourable  to  correct  judgment,  39. 

unexplained  appearances  of,  57. 

attempts  to  remove,  by  false  statements,  59. 

T. 

Testimony,  3. 

strength  of,  7. 

concurrent  and  independent,  force  of,  214. 

—  dependent,  force  of,  214. 

must  be  consistent,  217. 

Time,  verification  of,  114.  • 

Torture,  24,  62. 

confessions  obtained  by,  62. 

Truth,  definition  of,  1. 

necessary,  2. 

contingent,  2. 

subjects  of,  3. 

V. 

Variations  in  testimony,  effect  of,  222. 
Verification  of  time  and  dates,  114. 

W. 

Water-mark  in  paper,  29,  114. 

Witchcraft,  confessions  of,  in  the  State  Trials,  64. 

THE    END. 


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